Joyce McKiver v. Murphy-Brown, LLC

980 F.3d 937

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 19, 2020
• Docket: 19-1019
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1019

JOYCE MCKIVER; DELOIS LEWIS; DAPHNE MCKOY; ALEXANDRIA MCKOY; ANTONIO KEVIN MCKOY; ARCHIE WRIGHT, JR.; TAMMY LLOYD; DEBORAH JOHNSON; ETHEL DAVIS; PRISCILLA DUNHAM,

Plaintiffs - Appellees,

and

DENNIS MCKIVER, JR.; LAJUNE JESSUP; DON LLOYD, Administrator of the Estate of Fred Lloyd; TERESA LLOYD; TANECHIA LLOYD; CARL LEWIS; ANNETTE MCKIVER; KAREN MCKIVER; BRIONNA MCKIVER; EDWARD OWENS; DAISY LLOYD; A. (DAUGHTER); A. (SON),

Plaintiffs,

v.

MURPHY-BROWN, LLC, d/b/a Smithfield Hog Production Division,

Defendant – Appellant.

------------------------------

AMERICAN FARM BUREAU FEDERATION; NATIONAL PORK PRODUCERS COUNCIL; NORTH CAROLINA FARM BUREAU FEDERATION; NORTH CAROLINA PORK COUNCIL; NORTH AMERICAN MEAT INSTITUTE; NATIONAL ASSOCIATION OF MANUFACTURERS; GROCERY MANUFACTURERS ASSOCIATION; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; NATIONAL TURKEY FEDERATION; NATIONAL CHICKEN COUNCIL; JOEY D. CARTER; JOEY CARTER FARMS; WILLIAM R. KINLAW; KINLAW FARMS, LLC; PAUL STANLEY; PAGLE CORP.; GREENWOOD LIVESTOCK, LLC,

Amici Supporting Appellant. LAW PROFESSORS WITH EXPERTISE IN TORT AND REGULATORY LAW; AMERICAN ASSOCIATION FOR JUSTICE; NORTH CAROLINA JUSTICE CENTER; HUMANE SOCIETY OF THE UNITED STATES; PUBLIC JUSTICE, P.C.; FOOD & WATER WATCH; WATERKEEPER ALLIANCE, INC.; NORTH CAROLINA ENVIRONMENTAL JUSTICE NETWORK; RURAL EMPOWERMENT ASSOCIATION FOR COMMUNITY HELP; DR. LAWRENCE CAHOON; ELIZABETH CHRISTENSON; DR. BRETT DOHERTY; MIKE DOLAN FLISS; DR. JILL JOHNSTON; BOB MARTIN; DR. SARAH RHODES; DR. ANA MARIA RULE; DR. SACOBY WILSON; DR. COURTNEY WOODS,

Amici Supporting Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (7:14-cv-00180-BR; 5:15-cv- 00013.BR)

Argued: January 31, 2020 Decided: November 19, 2020

Before WILKINSON, AGEE and THACKER, Circuit Judges.

Affirmed in part, vacated and remanded in part by published opinion. Judge Thacker wrote the opinion, in which Judge Wilkinson concurred. Judge Wilkinson wrote a concurring opinion. Judge Agee wrote an opinion concurring in part and dissenting in part.

ARGUED: Stuart Alan Raphael, HUNTON ANDREW KURTH, LLP, Washington, D.C., for Appellant. Tillman J. Breckenridge, PIERCE BAINBRIDGE BECK PRICE & HECHT, LLP, Washington, D.C., for Appellee. ON BRIEF: Robert M. Tata, Washington, D.C., Trevor S. Cox, Kevin S. Elliker, David M. Parker, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellant. Mona Lisa Wallace, John Hughes, WALLACE AND GRAHAM, P.A., Salisbury, North Carolina; Tanya Fridland, PIERCE BAINBRIDGE BECK PRICE & HECHT, LLP, Washington, D.C., for Appellees. Michael B. Kimberly, Washington, D.C., Timothy S. Bishop, Brett E. Legner, Jed Glickstein, Chicago, Illinois, Michael B. Kimberly, MAYER BROWN LLP, Washington, D.C.; Ellen Steen, Travis Cushman, AMERICAN FARM BUREAU FEDERATION, Washington, D.C.; Phillip Jacob Parker Jr., NORTH CAROLINA FARM

2 BUREAU FEDERATION, Raleigh, North Carolina; Michael C. Formica, NATIONAL PORK PRODUCERS COUNCIL, Washington, D.C., for Amici The American Farm Bureau Federation, National Pork Producers Council, North Carolina Farm Bureau Federation, and North Carolina Pork Council. Daryl L. Joseffer, Michael B. Schon, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C., for Amicus Chamber of Commerce of the United States of America. Sean Marotta, HOGAN LOVELLS US LLP, Washington, D.C., for Amici Chamber of Commerce of the United States of America, North American Meat Institute, National Association of Manufacturers, Grocery Manufacturers Association, National Turkey Federation, and National Chicken Council. Matthew Nis Leerberg, Kip D. Nelson, Troy D. Shelton, FOX ROTHSCHILD LLP, Raleigh, North Carolina, for Amici Joey D. Carter, Joey Carter Farms, William R. Kinlaw, Kinlaw Farms, LLC, Paul Stanley, Pagle Corp., and Greenwood Livestock, LLC. Steven M. Virgil, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Amici Law Professors with Expertise in Tort and Regulatory Law. Elise Sanguinetti, President, Jeffrey R. White, AMERICAN ASSOCIATION FOR JUSTICE, Washington, D.C.; David Arbogast, ARBOGAST LAW, San Carlos, California, for Amicus American Association for Justice. Elizabeth Haddix, Mark Dorosin, JULIUS L. CHAMBERS CENTER FOR CIVIL RIGHTS, Carrboro, North Carolina, for Amici North Carolina Environmental Justice Network and the Rural Empowerment Association for Community Help. Emily P. Turner, NORTH CAROLINA JUSTICE CENTER, Raleigh, North Carolina; J. Jerome Hartzell, HARTZELL & WHITEMAN, LLP, Raleigh, North Carolina, for Amicus North Carolina Justice Center. Anna Frostic, Laura Fox, Peter Brandt, THE HUMANE SOCIETY OF THE UNITED STATES, Washington, D.C., for Amicus The Humane Society of the United States. Marianne Engelman-Lado, YALE SCHOOL OF FORESTRY & ENVIRONMENTAL STUDIES, New Haven, Connecticut; Peter Hans Lehner, Alexis Andiman, EARTHJUSTICE, New York, New York, for Amici Dr. Lawrence B. Cahoon, Elizabeth Christenson, Dr. Brett Doherty, Mike Dolan Fliss, Dr. Jill Johnston, Bob Martin, Dr. Sarah Rhodes, Dr. Ana María Rule, Dr. Sacoby Wilson, and Dr. Courtney Woods. Tarah Heinzen, FOOD & WATER WATCH, Washington, D.C., for Amicus Food & Water Watch. David S. Muraskin, Jessica L. Culpepper, Kellan Smith, PUBLIC JUSTICE, P.C., Washington, D.C., for Amici Public Justice and Food & Water Watch. Chandra T. Taylor, Blakely Hildebrand, Nick Jimenez, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Amicus Waterkeeper Alliance.

3 THACKER, Circuit Judge:

Murphy-Brown, LLC (“Appellant”) challenges a jury verdict against it awarding

compensatory and punitive damages to neighbors of its hog production facilities. Those

neighbors, residents of rural Bladen County, North Carolina, sought relief under state

nuisance law from odors, pests, and noises they attribute to farming practices Appellant

implemented at an industrial-scale hog feeding farm. Having heard evidence of those

harms and Appellant’s role in creating them, a jury returned a verdict in favor of the

neighbors, to the tune of $75,000 in compensatory damages per plaintiff, along with a total

of $5 million in punitive damages, which was subsequently reduced to $2.5 million due to

North Carolina’s punitive damages cap.

Appellant asserts seven reasons why we should overturn the decision below and

grant a new trial. For the reasons detailed below, we affirm the jury’s verdict as to liability

for compensatory and punitive damages, but we vacate the award of punitive damages and

remand for a rehearing on that issue based on our evidentiary standards.

I.

A.

Appellant is a commercial hog producer, who contracted with third-party “grower”

Kinlaw Farms LLC (“Kinlaw Farms”) to operate an industrial hog feeding facility in

Bladen County, North Carolina. 1 Appellant is a single-member LLC of a wholly owned

1 Appellant is a vertically integrated hog producer, which means Appellant farms hogs on an industrial scale by controlling each stage of pork production from the raising and feeding of the livestock to slaughter and packaging for sale. Appellant operates in part (Continued) 4 subsidiary of Smithfield Foods, Inc. (“Smithfield”), which is in turn owned by WH Group

Limited (“WH Group”), a publicly traded company based in Hong Kong.

Industrial farming operators like Appellant require their contract growers like

Kinlaw Farms to comply with specific policies. The controlling industrial farmer issues

detailed mandates to its growers in order to ensure consistency across their various contract

operations. Appellant imposes standard operating procedures for all of its contract

growers. Specifically, Appellant (1) directs grower management procedures; (2) mandates

design and construction of operations; (3) can require the use of technological

enhancements; (4) can require capital investments; (5) dictates how many of its hogs are

to be placed at a given operation; and (6) controls hog waste management systems.

Joyce McKiver, Delois Lewis, Daphne McKoy, Alexandria McKoy, Antonio Kevin

McKoy, Archie Wright, Jr., Tammy Lloyd, Deborah Johnson, Ethel Davis, and Priscilla

Dunham (collectively, “Appellees”) are North Carolina residents who owned properties

near Kinlaw Farms. Appellees are a subset of a number of plaintiffs (“Plaintiffs”) who

sued Appellant for alleged nuisances associated with the hog operations at Kinlaw Farms.

The operation at Kinlaw Farms annually maintained nearly 15,000 of Appellant’s

hogs. These hogs generated approximately 153,000 pounds of feces and urine daily.

Kinlaw Farms housed the hogs in hog sheds that used vents and fans to move fumes from

the hogs to the outside of the building. By design, the hog waste in the sheds fell through

by supplying livestock and feed to contractors known as “growers” who house and care for Appellant’s hogs for certain portions of the animals’ life cycle, subject to Appellant’s control.

5 slats in the flooring, where the waste was then stored in three open-air pits within view of

Appellees’ homes. These pits or “lagoons” contained millions of gallons of hog waste.

As part of its standard operating procedures for contract growers, Appellant wrote

the policy dictating how Kinlaw Farms disposed of the waste from Appellant’s hogs. At

Appellant’s direction, Kinlaw Farms used what is known as the lagoon-and-sprayfield

method for hog waste disposal. Kinlaw Farms periodically drained waste from the lagoons

and spread it across open “sprayfields” on the Kinlaw Farms property. Approximately

eight million gallons of hog feces were sprayed in the air annually at Kinlaw Farms.

Appellant was aware of the proximity of Kinlaw Farms to neighboring residences

because Appellant’s corporate predecessor had sited and designed the facility, and

Appellant routinely visited the Kinlaw Farms property for inspections. Notably, because

of its operations’ proximity to surrounding properties, Appellant instructed its growers to

refrain from applying the hog waste to sprayfields “out of respect for [their] neighbors” if

the contractor was aware that neighbors planned to have guests over for weddings or

cookouts. Despite this policy, spraying of hog waste in summer months occurred at Kinlaw

Farms as regularly as three to five days a week for an average of six hours per day.

Additionally, through its contractual arrangement, Appellant was solely responsible

for the Kinlaw Farms trucking schedule and for the decision of where to site the facility’s

entrance road that passed near Appellees’ properties. Trucks frequented Kinlaw Farms on

a regular basis to deliver new hogs, take away live hogs, and pick up dead hogs. Appellant

set Kinlaw Farm’s delivery and pickup schedules for trucks at an all-day, all-night pace.

6 As an example, on one night in 2016, at least 12 trucks passed through to the Kinlaw Farms

property between midnight and six in the morning.

At Appellant’s direction, hog carcasses pending pickup were stored in “dead boxes,”

dumpsters placed in open fields on the Kinlaw Farms property. Hog carcasses would pile

up and rot in these dumpsters in open fields until collection of the carcasses was scheduled.

These dead boxes attracted dozens of buzzards and flies that would accumulate around the

dead boxes and frequent Appellees’ neighboring properties.

B.

For decades predating the lawsuit at issue here, agricultural experts and lay media

alike researched and reported environmental effects associated with industrial hog

operations in Eastern North Carolina. Indeed, Appellant itself collected and stored

hundreds of newspaper articles documenting neighbors’ complaints about lagoon-and-

sprayfield industrial hog operations and was aware of scientific studies and state

government documents reporting the effects of odor, including upper respiratory and

gastrointestinal ailments, on neighbors of concentrated animal feeding operations like

Kinlaw Farms. For years, Appellant defended its practices against critics in North Carolina

communities and public offices, and routinely opposed regulations that would require

lagoon-and-sprayfield operations to curtail their effects on neighbors. In particular,

Appellant’s former director Don Butler admitted that Appellant was aware of Bladen

County community complaints about unabated lagoon-and-sprayfield hog operations of the

7 kind Appellant prescribed to its growers -- specifically that individuals were complaining

about “odor, flies, noise, trucks, [and] interference with their quality of life.” J.A. 7466. 2

Although there is no evidence of complaints made directly to Appellant about

Kinlaw Farms specifically, Kinlaw Farms did receive complaints from one plaintiff in this

suit and another neighbor, who also complained about Kinlaw Farms to the North Carolina

Department of Environment and Natural Resources. The record demonstrates that all

parties agreed Kinlaw Farms consistently followed Appellant’s policies, compliance which

Appellant actively monitored. Yet before the recent nuisance suits, Appellant had neither

monitored odor at any operation (including Kinlaw Farms), nor terminated a grower

because of complaints about odor.

C.

Reacting to mounting community pressure, in 1997, North Carolina banned new

lagoon-and-sprayfield hog operations. See N.C. Sess. Laws 1997–458. Existing farms

including Kinlaw Farms were grandfathered in and not subjected to the ban, but the North

Carolina legislature did bind the state’s Department of Agriculture to “develop a plan to

phase out the use of . . . lagoons and sprayfields as primary methods of disposing of animal

waste at swine farms.” See id. § 12.4(a). And in 1999, North Carolina’s governor

announced an intention to end lagoon-and-sprayfield operations.

The following year, Smithfield, Appellant’s parent company, signed an agreement

with the Attorney General of North Carolina to fund research for replacement technologies

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

8 and to implement technologies found to be feasible (the “AG Agreement”). In 2006, the

scientific expert designated by the AG Agreement identified alternative abatement

technologies but, applying the AG Agreement’s criteria, the designee did not deem those

technologies economically feasible at that time for existing hog farms. This 2006

feasibility analysis did not consider Smithfield’s profits or ability to pay.

Appellant’s growers were not expected to pay for waste management improvements

on their own. Because of the extensive control Appellant maintained over its contract

growers -- and the control in turn exerted over Appellant by Smithfield and its parent WH

Group -- Appellant’s president explained it had the power to implement abatement

technologies at its growers’ operations by prescribing those technologies and getting

money from the parent companies to help pay for them. Due to the integrated nature of

Appellant’s farming operations, company procedures would have Appellant receive

funding from the parent companies for waste management improvements it might choose

to implement.

D.

In 2013, Appellant and several of its contract growers, including Kinlaw Farms,

were sued in North Carolina state court by neighbors of their hog operations, including

Appellees. As Appellees explained, “after learning the full extent of [Appellant’s] control

over the operations causing the nuisance and the growers’ powerlessness to address it,” the

plaintiffs dismissed those state actions and refiled suit in federal court in the Eastern

District of North Carolina in 2014, naming Appellant only. Appellees’ Br. 16.

9 The district court for the Eastern District of North Carolina coordinated 26 related

cases filed by neighbors of Appellant’s various hog operations as part of a Master Case

docket. 3 During the Master Case proceedings, the district court issued a number of

decisions, including denying Appellant’s motion for judgment on the pleadings based on

failure to join its contract farmers including Kinlaw Farms as necessary parties. The court

also denied Appellant’s motion to dismiss claims for noneconomic damages and motion

for partial summary judgment on the plaintiffs’ punitive and annoyance damage claims.

On the other hand, the court granted the plaintiffs’ motion for partial summary judgment

on Appellant’s statute of limitations defense.

In the fall of 2017, the district court ordered trials to move forward from the Master

Case docket, with Appellees’ case being first in line. During the trial, the district court

denied Appellant’s motion to bifurcate the punitive damages phase from the liability phase

of the trial and also denied Appellant’s evidentiary objections as to proof of profits,

executive compensation of its parent companies, and certain expert opinions. At the close

of all evidence, the district court denied Appellant’s motion for judgment as a matter of

law as to (i) the sufficiency of evidence to support punitive damages; (ii) vicarious liability;

3 In all, this opinion refers to three sets of plaintiffs involved in suits against Appellant. Complainants in the Master Case Docket cases were neighbors of Appellant’s various hog operations. Among this broadest set of neighbor plaintiffs were our Plaintiffs, neighbors of Kinlaw Farms whose claims related particularly to Appellant’s operations there. Appellees are a subset of the Plaintiffs who originally brought suit against Appellant over the Kinlaw Farms operation.

10 (iii) the statute of limitations; and (iv) evidence supporting fear of future injuries. And,

before submitting the case to the jury, the district court rejected Appellant’s proposed jury

instructions relating to the (i) statute of limitations; (ii) scope of available compensatory

damages; and (iii) vicarious liability for contractors.

In Spring 2018, the jury returned a verdict awarding $75,000 in compensatory

damages to each of the ten Appellees and also awarding $5 million in punitive damages.

The district court then applied North Carolina’s punitive damages cap, reducing the total

punitive award to $2.5 million. See N.C. Gen. Stat. § 1D-25(b) (limiting per-plaintiff

punitive damages to the greater of $250,000 or treble compensatory damages); Rhyne v. K-

Mart Corp., 594 S.E.2d 1, 5 (N.C. 2004) (explaining N.C. Gen. Stat. § 1D-25 “applies to

limit recovery of punitive damages per each plaintiff”). Appellant timely appealed,

challenging each of the rulings noted above.

Following the judgment, Appellant terminated its relationship with Kinlaw Farms

and withdrew its hogs from that facility, alleging in the termination letter that Kinlaw

Farms failed to “comply with standard operating procedures.” J.A. 9593 (quoting May 4,

2018 Kinlaw Letter at 2, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C.

Sept. 28, 2018), ECF No. 324-2). On appeal, Appellant asserts, “[t]he jury’s nuisance

finding effectively required that Kinlaw Farm cease operations until any nuisance is

abated.” Appellant’s Br. 12.

II.

Appellant raises seven purported errors on appeal, each of which Appellant

contends will require a new trial. We address each in turn.

11 A.

Necessary and Indispensable Party

First, Appellant argues that Kinlaw Farms was a necessary and indispensable party

to this suit, and thus, should have been joined pursuant to Federal Rule of Civil Procedure

19. Appellant presented this argument to the district court in both a motion pursuant to

Federal Rule of Civil Procedure 12(c) and in a post-trial motion. The district court rejected

Appellant’s contentions on each occasion.

1.

We review a district court’s Rule 19 rulings for an abuse of discretion. Nat’l Union

Fire Ins. Co. of Pittsburgh v. Rite Aid of S.C., Inc., 210 F.3d 246, 250 (4th Cir. 2000)

(citation omitted). Generally, “[t]he inquiry contemplated by Rule 19 is a practical one,”

properly “addressed to the sound discretion of the trial court.” Coastal Modular Corp. v.

Laminators, Inc., 635 F.2d 1102, 1108 (4th Cir. 1980) (citations omitted).

2.

Rule 19 sets up “a two-step inquiry.” Owens-Illinois, Inc., v. Meade, 186 F.3d 435,

440 (4th Cir. 1999) (citation omitted). We ask “first whether the nonjoined party is

necessary under Rule 19(a) and then whether the party is indispensable under Rule 19(b).”

Gunvor SA v. Kayablian, 948 F.3d 214, 218 (4th Cir. 2020) (citation omitted).

Pursuant to Rule 19(a), a party is necessary if

(A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of an action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter

12 impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a). A necessary party should be ordered into the action. See Owens-

Illinois, Inc., 186 F.3d at 440. But “[w]hen a party cannot be joined because its joinder

destroys diversity, the court must determine whether the proceeding can continue in its

absence or whether it is indispensable pursuant to Rule 19(b) and the action must be

dismissed.” Id. (citation omitted).

Rule 19(b) provides guidance on the identification of an indispensable party: “If a

person who is required to be joined if feasible cannot be joined, the court must determine

whether, in equity and good conscience, the action should proceed among the existing

parties or should be dismissed.” Fed. R. Civ. P. 19(b). In this regard, we are given the

following nonexclusive factors to consider:

(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Id. “Courts are loath to dismiss cases based on nonjoinder of a party, so dismissal will be

ordered only when the resulting defect cannot be remedied and prejudice or inefficiency

will certainly result.” Owens-Illinois, Inc., 186 F.3d at 441 (citations omitted).

13 Neither prong of Rule 19 is to be applied merely as a “procedural formula.” Home

Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 433 (4th Cir. 2014) (quoting Provident

Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119 n.16 (1968)). To the

contrary, the “[d]ecisions must be made pragmatically, in the context of the substance of

each case, and courts must take into account the possible prejudice to all parties, including

those not before it.” Id. (citations and internal quotation marks omitted).

3.

Applying Rule 19(a), there is nothing before us to suggest that the district court

could not have “accord[ed] complete relief among existing parties” in this suit without the

addition of Kinlaw Farms, and Appellant does not so claim. Fed. R. Civ. P. 19(a)(1)(A).

Nor does Appellant argue that it would be subject to multiple or inconsistent judgments.

Fed. R. Civ. P. 19(a)(1)(B)(ii).

Instead, Appellant argues “Kinlaw Farms has significant pecuniary and contractual

interests threatened by this litigation.” Appellant’s Br. 55. This argument is aimed at the

second prong of Rule 19(a)’s test -- whether a third party “claims an interest relating to the

subject of an action” whose ability to protect that interest “as a practical matter” will be

impaired or impeded if excluded from the existing suit. Fed. R. Civ. P. 19(a)(1)(B)(i). This

aspect of the test “directs us to consider a non-joined party’s ability to protect its own

interests.” Home Buyers Warranty Corp., 750 F.3d at 433.

Appellant insists that Kinlaw Farms needed to be made a party to this suit in order

to protect its own interests. Yet Kinlaw Farms did not seek to join the suit or otherwise

“claim[ ] an interest relating to the subject of an action” before the district court, and

14 Appellant did not assert a claim against Kinlaw Farms to bring the grower into the suit.

Fed. R. Civ. P. 19(a)(1)(B)(i). Unlike the instant case, our Rule 19(a) decisions Appellant

cites each involve a situation where the contracts or obligations of the “necessary” party

were being interpreted or were otherwise directly at issue. See Home Buyers Warranty

Corp., 750 F.3d at 434 (determining third parties “actively contesting their liability in state

court” under a contract and entitled to insurance by the defendants for construction defects

like those alleged had “a natural interest in any adjudication of the terms of [the] contract”);

Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 552–53 (4th Cir. 2006) (deeming

necessary and indispensable the third party whose preferential hiring policy dictated the

defendant casino operator’s conduct, where the court would be deciding the legality of the

policy); Nat’l Union Fire Ins. Co. v. Rite Aid of S.C., Inc., 210 F.3d 246, 251 (4th Cir.

2000) (indicating that the court’s decision would “necessarily require it to interpret the

notice provisions of the policy and other agreements” between the plaintiff and the absent

party).

“[E]ven if [an absent party] is alleged to have played a central role” in the action at

issue, “and even if resolution of the action will require the court to evaluate the absent

party’s conduct,” that party “in many cases . . . will not have interests that warrant

protection under Rule 19(a)(1)(B)(i).” Ward v. Apple Inc., 791 F.3d 1041, 1050 (9th Cir.

2015). The interest in question should “be more than a financial stake, and more than

speculation about a future event.” Id. at 1051 (internal quotation marks omitted).

Here, the suit’s practical consequence for the third party, Kinlaw Farms, was

Appellant’s termination of its grower relationship. But Appellant’s post-verdict

15 termination of Kinlaw Farms was not a necessary or inevitable consequence of anything

resolved in this suit. Though no doubt financially difficult for Kinlaw Farms, that

termination was not compelled by the court’s decision and cannot control Appellees’ case.

Appellant’s termination letter to Kinlaw Farms suggested that Kinlaw Farms failed to

“comply with standard operating procedures.” J.A. 9593 (quoting May 4, 2018 Kinlaw

Letter at 2, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28,

2018), ECF No. 324-2). But this is the exact opposite of what Appellant (and Appellees)

argued at trial, where both parties had contended that Kinlaw Farms followed Appellant’s

policies to the letter.

Nothing found by the jury in this case or mandated by the judgment required

Appellant’s termination of its relationship with Kinlaw Farms after the litigation was over.

The jury’s decision left Appellant free to continue its grower relationship with Kinlaw

Farms in a manner that respects the property rights of its neighbors if it so chose.

Appellant’s assessment of the costs and benefits of doing so -- and its business decision

based thereon -- cannot retroactively make Kinlaw Farms a necessary party.

And even assuming Kinlaw Farms was a necessary party, dismissal of a case is “a

drastic remedy that should be employed only sparingly.” Gunvor SA, 948 F.3d at 219

(quoting Home Buyers Warranty Corp., 750 F.3d at 433). Owing deference to the district

court’s determination under the abuse of discretion standard, we see no reason to hold that

Kinlaw Farms is a necessary party, let alone an indispensable one whose absence warrants

dismissal. Appellant’s arguments that Kinlaw Farms is indispensable are cursory and do

not creditably address any of the Rule 19(b) factors, other than pointing out that Plaintiffs

16 could have brought this suit against Kinlaw Farms and Appellant in state court. There is

nothing to indicate that the judgment rendered is not adequate or that Kinlaw Farms’s

absence unfairly prejudices either Kinlaw Farms or Appellant. We therefore affirm the

district court’s judgment as to Rule 19.

Statute of Limitations

Next, Appellant contends the district court erred in rejecting its statute of limitations

defense. Appellant contended that Plaintiffs’ claims should have been barred by a three-

year statute of limitations applying to actions involving a “continuing” nuisance. In

response, Plaintiffs moved for partial summary judgment on Appellant’s statute of

limitations defense, asserting that this case involves a “recurrent” nuisance, for which the

three-year limit acts only to constrain the amount of damages available, not to completely

bar the claim. The district court partially denied Plaintiffs’ summary judgment motion

with regard to certain other affirmative defenses but held “as a matter of law” with regard

to the statute of limitations defense that the alleged nuisance was recurring. J.A. 3473. 4

Appellant alleges this was error. Appellant further claims the court erred in refusing to

give an instruction for the jury to decide whether the nuisance was continuing or recurring.

4 The denial of Plaintiffs’ summary judgment motion with regard to the other affirmative defenses is not at issue in this appeal.

17 1.

We review a district court’s summary judgment decision de novo, Woods v.

Berryhill, 888 F.3d 686, 691 (4th Cir. 2018) (citation omitted), and the court’s refusal to

grant a jury instruction for abuse of discretion, United States v. Savage, 885 F.3d 212, 222

(4th Cir. 2018). A district court’s refusal to provide a jury instruction is reversible only if

the defendant’s requested instruction “(1) was correct; (2) was not substantially covered by

the court’s charge to the jury; and (3) dealt with some point in the trial so important, that

failure to give the requested instruction seriously impaired the defendant’s ability to

conduct his defense.” Savage, 885 F.3d at 223 (quoting United States v. Lewis, 53 F.3d 29,

32 (4th Cir. 1995)).

North Carolina law applies a three-year statute of limitations for suits based on

“trespass upon real property,” and this standard applies equally to nuisance actions. N.C.

Gen. Stat. Ann. § 1-52(3); Wilson v. McLeod Oil Co., 398 S.E.2d 586, 596 (N.C. 1990).

“When a trespass is a continuing one,” the suit must be “commenced within three years

from the original trespass, and not thereafter.” N.C. Gen. Stat. Ann. § 1-52(3). A

“continuing” nuisance (involving a single event causing ongoing damage) is materially

distinct from a “recurrent” nuisance (involving repeated injuries). See Wilson, 398 S.E.2d

at 596.

The North Carolina Supreme Court in Wilson v. McLeod Oil Co., Inc., 398 S.E.2d

586, 595 (N.C. 1990), made clear that the distinction between a continuing trespass and a

recurrent one hinges on whether there has been a completed act. The Wilson court

18 referenced a previous case in which it had rejected a statute of limitations defense for

repeated flooding:

“Suppose [the defendant] had lamed the plaintiff’s horse more than three years ago, and he had continued lame ever since; the action would be barred. So, as he first injured the plaintiff’s land more than three years age, and it has continued injured ever since, the action is barred.” [quoting the defendant].

The fallacy [in this premise] is in not drawing the distinction between a single act of injury and continuous acts. In our case, he flooded the land more than three years ago, it is true; and for that the action is barred; but he has also continued to flood it anew every day within three years, and for that the action lies.

Id. (quoting Spilman v. Roanoke Nav. Co., 74 N.C. 675, 678 (1876) (emphasis in original)).

Noting this, the Wilson court refused to apply the statute of limitations to bar a suit where

plaintiffs complained of ongoing seepage of gasoline from a neighboring property. See id.

at 596. Because the invasion of the plaintiffs’ land stemmed from an ongoing leak, the

North Carolina Supreme Court concluded that it was a renewing or recurrent injury and

not complete. See id. Though damages were to be limited to the previous three-year

period, the court did not bar the plaintiffs’ nuisance suit from going forward even though

there was evidence to demonstrate that the plaintiffs knew of gasoline contamination well

before the three-year mark. See id.

Appellant itself cites Wilson in attempt to support its defense. However, Appellant

fails to apply the case’s analysis to the facts at hand. The harm claimed here is the loss of

use and enjoyment of property caused by repeated invasion by odor, noise, and pests.

Appellant argues that statements by Appellees referring to these invasions as constant

19 raised a material dispute of fact for the jury to decide whether the nuisance was continuing.

See, e.g., Appellant’s Br. 53 (citing one Appellee’s statement that “there’s not a day we

don’t have trouble with buzzards” (quoting J.A. 7425), another Appellee’s testimony that

“the odor was ‘always annoying’ and that she heard ‘hogs squealing all the time’” (quoting

J.A. 7754–55), and another Appellee’s statement “that traffic annoyed her ‘all the time,

day and night’” (quoting J.A. 7917)). In response, Appellees point out that interpreting

these statements as though there was literally unending odor, truck noise, and pests is

unreasonable. We agree with Appellees on this point.

Moreover, even at that most extreme, Appellees’ cited harms would be no less

constant than the gas seepage in Wilson, claims which were spared from the three-year

statute of limitations due to their recurrent nature. As the North Carolina Supreme Court

there explained, “[c]ontinuous injuries caused by the maintenance of a nuisance are barred

only by the running of the statute against recurrent trespasses . . . .” Wilson, 398 S.E.2d at

596 (emphasis supplied) (quoting Anderson v. Waynesville, 164 S.E. 583, 587 (N.C.

1937)). In this regard, it is important to note that Appellees did not rest their case on

establishing Kinlaw Farms constituted a nuisance per se. That is -- the nuisance alleged

was not simply the years-ago construction of a lagoon-and-sprayfield hog operation -- but

rather the ongoing maintenance of conditions that in fact caused harm.

Put in the simple terms of the Wilson court, the question before us is whether the

injurious act is completed or ongoing. See Wilson, 398 S.E.2d at 595 (quoting Spilman, 74

N.C. at 678). That is, do the harms flow from something done in the past as a single,

complete act or do the harms constitute a renewed, avoidable violation each time they

20 occur? Here, maintenance of odiferous, noisy, and pest-ridden farm operations resulted in

repeated -- i.e., recurrent -- invasions of Appellees’ properties. The nuisance was not the

solitary act of building a lagoon-and-sprayfield hog farm in the past but was instead the

practical operation of that farm in a manner inconsistent with its neighbors’ use and

enjoyment of their own properties. The district court’s decision as to the applicable statute

of limitations was therefore not legal error and refusing to give the inapplicable jury

instruction on continuing nuisances was not an abuse of discretion.

Private Nuisance Damages

Appellant’s third argument in this appeal is that North Carolina private nuisance law

bars recovery of compensatory damages of any kind, other than damages for reduction in

the harmed properties’ fair market or rental value. Specifically, Appellant points to a 2017

amendment to North Carolina’s Right to Farm Act (the “2017 RTFA amendment”) enacted

three years after the filing of the lawsuit in this case. The 2017 RTFA amendment limited

compensatory damages in nuisance suits to the reduction in fair market value caused by

the nuisance (for permanent nuisances) and to the diminution in fair rental value (for

temporary nuisances). See N.C. Sess. Laws 2017-11, codified at N.C. Gen. Stat. § 106-

702. Appellant asserts that the amendment merely “clarified” this limitation on the

available forms of compensatory damages in North Carolina nuisance law. Appellant’s

Br. 44.

Because Appellees stipulated they were not seeking damages for property or rental

value losses and focused only on loss of use and enjoyment of their property, the parties

21 do not disagree that this suit if filed today would likely be barred by the 2017 RFTA

amendment. But the question before us is whether the 2017 RTFA amendment’s limitation

of damages actually changed the state’s law or simply clarified a preexisting principle. If

the former, the district court did not err; if the latter, Appellant’s argument holds water.

At summary judgment, the district court concluded that the issue of annoyance and

discomfort damages should go to the jury, citing longstanding North Carolina case law

allowing such recovery in nuisance suits, including compensation for “the inconvenience,

discomfiture, and unpleasantness sustained.” J.A. 3476 (quoting Thomason v. Seaboard

Air Line Ry., 55 S.E. 198, 204 (N.C. 1906)). In the face of that decision, Appellant still

sought a jury instruction that North Carolina plaintiffs “may not recover damages for

physical discomfort or annoyance.” J.A. 5373. The district court refused to give this

instruction.

We review a district court’s summary judgment decision de novo, Woods, 888 F.3d

at 691, and the refusal of a jury instruction for an abuse of discretion, Savage, 885 F.3d at

222.

Both federal and North Carolina courts maintain a longstanding presumption against

retroactive application of legislation. See Landgraf v. USI Film Products, 511 U.S. 244,

265 (1994); Vanderbilt v. Atl. Coast Line R.R. Co., 125 S.E. 387, 391 (N.C. 1924). Indeed,

“the presumption is very strong that a statute was not meant to act retrospectively, and it

ought never to receive such a construction if it is susceptible of any other.” Vanderbilt,

125 S.E. at 391 (quoting U.S. Fid. & Guar. Co. v. United States, 209 U.S. 306, 314 (1908)).

22 We must not give a statute a retroactive construction “unless the words used are so clear,

strong and imperative that no other meaning can be annexed to them or unless the intention

of the Legislature cannot be otherwise satisfied.” Id. (quoting U.S. Fid. & Guar. Co., 209

U.S. at 314).

In North Carolina, “[t]he primary goal of statutory construction is to effectuate the

purpose of the legislature in enacting the statute.” State v. Curtis, 817 S.E.2d 187, 189

(N.C. 2018) (internal quotation marks omitted). “The intent of the General Assembly may

be found first from the plain language of the statute, then from the legislative history, the

spirit of the act, and what the act seeks to accomplish.” Midrex Techs., Inc. v. N.C. Dep’t

of Revenue, 794 S.E.2d 785, 792 (N.C. 2016) (quoting Lenox, Inc. v. Tolson, 548 S.E.2d

513, 517 (N.C. 2001)). And of course, “[a] statute will not be construed to have retroactive

effect unless that intent is clearly expressed or arises by necessary implication from its

terms.” In re Mitchell’s Will, 203 S.E.2d 48, 50 (N.C. 1974) (citations omitted). Case law

is thus very clear that we should look for clear signs of intentional and unavoidable

retroactive application if a statute is indeed to have that effect.

Turning to the statute’s text, the 2017 RTFA amendment, enacted as HB 467 on

May 11, 2017, includes the following effective date language: “This act is effective when

it becomes law and applies to causes of action commenced or brought on or after that date.”

N.C. Sess. Laws 2017-11, codified at N.C. Gen. Stat. § 106-702. Appellees argue that our

inquiry should start and end with this provision inasmuch as they assert this language

speaks clearly about which causes of action fall under the amended law and no other part

23 of the statute provides such a “clear, strong and imperative” message. Vanderbilt, 125 S.E.

at 391 (quoting U.S. Fid. & Guar. Co., 209 U.S. at 314).

Appellant, for its part, points to the 2017 RTFA amendment’s title: “An Act to

Clarify the Remedies Available in Private Nuisance Actions Against Agricultural and

Forestry Operations.” N.C. Sess. Laws. 2017-11. This title, Appellant asserts, indicates

that the North Carolina General Assembly only intended the law to “clarify” existing law

rather than change anything substantive about the law. According to Appellant, this

distinction matters because North Carolina law provides, “[a] clarifying amendment, unlike

an altering amendment, is one that does not change the substance of the law but instead

gives further insight into the way in which the legislature intended the law to apply from

its original enactment.” Ray v. N.C. Dept. of Transp., 727 S.E.2d 675, 681 (N.C. 2012)

(citation omitted). If the 2017 RFTA amendment only clarified “the way in which the

legislature intended the law” to originally apply, the amendment would be stating the law

as it applied at the time of the pending suit as well as how it will apply going forward. Id.

(“[I]n addition to applying to all cases brought after their effective dates, [clarifying]

amendments apply to all cases pending before the courts when the amendment is adopted,

regardless of whether the underlying claim arose before or after the effective date of the

amendment.” (citations omitted)).

Evaluating each of these arguments, we note -- as do Appellees -- that the 2017

RTFA amendment expressly states it will apply to causes of action going forward. See

N.C. Sess. Laws 2017-11. And, apart from the amendment’s title, no provision lends itself

to a view that the legislature was merely “clarifying” North Carolina law on damages.

24 While we cannot ignore the act’s title, it does not control as compared to the operative text

of the statute. See United States v. Capers, 61 F.3d 1100, 1110 (4th Cir. 1995) (explaining

that the drafters’ characterization of an enactment as clarifying “cannot be accepted as

conclusive, because that would enable [them] to make substantive changes in the guise of

‘clarification’” (internal quotation marks omitted)).

Nevertheless, Appellant points to Ray v. North Carolina Department of

Transportation, 727 S.E.2d 675, 682 (N.C. 2012), which specifies that a prospective

effective date does not itself determine whether a law is clarifying or altering. In Ray, the

court held that the amendment relevant there was meant to clarify “the General Assembly’s

original intent” regarding claims created “when the legislature enacted the S[tate] T[ort]

C[laims] A[ct].” Id. There, the court explained, “[g]iven that all statutes have [ ] effective

dates, an effective date standing alone, is insufficient information” for the court to

determine whether an enactment is clarifying or substantive. Id.

But if the 2017 RTFA amendment is a “clarifying” one -- what precisely is it

clarifying? Before the 2017 amendment, North Carolina’s RTFA codified the “coming-

to-the-nuisance” defense, thereby limiting who could bring nuisance claims. But before

2017, the law did not contain any provision as to the damages available for those claims.

This situation poses a stark contrast to Ray and the examples it contains -- situations where

a statute “initially fails expressly to address a particular point” related to what the statute

originally set out or created. See Ray, 727 S.E.2d at 682 (suit at issue was brought under

the State Tort Claims Act, which originally “did not address the application of the public

duty doctrine to claims made under it” (emphasis supplied)); Ferrell v. Dep’t of Transp.,

25 435 S.E.2d 309, 311 (N.C. 1993) (law empowering department to reconvey property did

not specify at what price).

By contrast, here, the General Assembly added a new section to the RTFA expressly

limiting the damages available in private common law actions for nuisance. The RFTA

never previously purported to do anything of the sort. For the “clarifying” principle to

apply here, we would need to conclude that, through the original RFTA and its previous

amendments, the General Assembly intended -- but never saw fit to mention -- that the law

revoked a long-recognized measure of recovery in North Carolina nuisance suits, being the

loss of use and enjoyment of one’s property beyond mere property value. See, e.g., Hanna

v. Brady, 327 S.E.2d 22, 25 (N.C. Ct. App. 1985) (explaining the availability of “physical

pain, annoyance, stress, deprivation of the use and comforts of one’s home” as damages

“left to the sound judgment and discretion of the trier of fact”).

In Ray, the court concluded, “[b]ecause the legislature left essentially all [the state’s]

pre-amendment cases intact,” the amendment did not constitute “a complete change in the

law but instead only an explanation of the limited role of the public duty doctrine” to suits

brought pursuant to the State Tort Claims Act. 727 S.E.2d at 683. In the case of the 2017

RTFA amendment, however, stripping all but property value losses from traditional

nuisance suits did violence to North Carolina precedent. While it is true that the parties

here are able to cite to conflicting authorities, it is beyond debate that North Carolina case

law dating back over 100 years includes recognition of loss of use and enjoyment from

26 annoyance and discomfort, as well as other forms of damages now barred by the 2017

RTFA amendment. 5

Thus, the 2017 RTFA amendment represents a substantive, forward-looking change

in the law. This is supported by the legislative history and statements about the law’s

intended effect. Even focusing on Appellant’s substantive-versus-clarifying test, we have

nothing from which to conclude the 2017 RFTA amendments should apply retroactively.

In contrast, we have a multitude of backdrop principles guiding us firmly away from that

conclusion.

For one thing, the implications for vested rights -- and therefore the doctrine of

constitutional avoidance -- support rejection of retroactivity here.

Both the federal and North Carolina constitutions protect vested rights. See

Landgraf, 511 U.S. at 266 (noting the Fifth Amendment’s role in protecting vested rights);

Fogleman v. D & J Equip. Rental, Inc., 431 S.E.2d 849, 852 (N.C. 1993) (refusing

retroactive application of an amended statute where it “deprived appellants of vested rights

and, thus, was unconstitutionally retroactive”). Even where there are two reasonable

constructions of a statute’s language, we are to avoid adopting the unconstitutional reading.

See United States v. Mills, 850 F.3d 693, 699 (4th Cir. 2017).

5 See BSK Enters., Inc. v. Beroth Oil Co., 783 S.E.2d 236, 249–50 (N.C. Ct. App. 2016); Broadbent v. Allison, 626 S.E.2d 758, 762 (N.C. Ct. App. 2006); Evans v. Lochmere Recreation Club, Inc., 627 S.E.2d 340, 343 (N.C. Ct. App. 2006); Whiteside Estates, Inc. v. Highlands Cove, LLC, 553 S.E.2d 431, 440 (N.C. Ct. App. 2001); Hanna v. Brady, 327 S.E.2d 22, 25 (N.C. Ct. App. 1985); Barrier v. Troutman, 55 S.E.2d 923, 926 (N.C. 1949); Oates v. Algodon Mfg. Co., 8 S.E.2d 605, 606 (N.C. 1940); Thomason v. Seaboard Air Line Ry., 55 S.E. 198, 204 (N.C. 1906).

27 In North Carolina, the right to compensatory damages “vest in a plaintiff upon

injury.” Rhyne v. K-Mart Corp., 594 S.E.2d 1, 12 (N.C. 2004) (citation omitted).

Appellant’s only response to this point is to say that a right to annoyance damages did not

exist at the time of injury. But, as explained, the weight of North Carolina case law and

the district court’s determination on the basis of that law are to the contrary. And,

“annoyance” damages aside, the 2017 RTFA amendment limited available damages to only

reduction in market value (for permanent nuisances) and rental value (for temporary

nuisances). See N.C. Sess. Laws 2017-11, § 1; codified at N.C. Gen. Stat § 106-702(a).

This without question would strip plaintiffs in pending suits of vested rights to damages

noted even in Appellant’s authorities, such as “reasonable costs of replacement or repair

[and] restoration of the property to its prenuisance condition; and other added damages for

incidental losses.” Rudd v. Electrolux Corp., 982 F. Supp. 355, 372 (M.D.N.C. 1997).

Further, policy and justice concerns weigh against allowing retroactive amendments

to alter the damages available in pending suits. A decision in Appellant’s favor as to the

effect of the 2017 RTFA amendment would reward powerful defendants who, faced with

a possible judgment against them, could escape responsibility by raising a specter of doubt

about something the state’s courts have long made available. North Carolina’s legislators

were worried about the constitutionality and fairness of the RTFA’s amendment, and these

concerns motivated the change from the original language -- specifying it would apply to

pending cases -- to the current version applying only to claims filed on or after the effective

date. Motivated by all of the above concerns, we have previously declined to apply

responsive enactments and we do so here. See Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d

28 164, 171–72 (4th Cir. 2010) (refusing to retroactively apply an amendment where, on first

appeal, we ruled for the plaintiffs and the state legislature then adopted a definition

purporting to affect pending cases that “was, in effect, that advocated by defendants and

rejected by this court”).

We therefore affirm the district court with regard to the availability of compensatory

damages beyond property or rental value in this case.

Expert Testimony

Next, Appellant asserts the district court erred when it approved the testimony of

Appellees’ expert, Dr. Shane Rogers, but excluded certain opinions of Appellant’s own

expert, Dr. Pamela Dalton.

We review a district court’s decisions on the admissibility of expert testimony for

abuse of discretion. United States v. Campbell, 963 F.3d 309, 313 (4th Cir. 2020).

Rule 702 of the Federal Rules of Evidence provides that a qualified expert witness

“may testify in the form of an opinion or otherwise if . . . [his or her] scientific, technical,

or other specialized knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue.” Fed. R. Evid. 702(a). The expert’s testimony must be “based

on sufficient facts or data” and be “the product of reliable principles and methods.” Fed.

R. Evid. 702(b), (c). And “the expert [must] reliably appl[y] the principles and methods to

the facts of the case.” Fed. R. Evid. 702(d).

29 “Implicit in the text of Rule 702 is a district court’s gatekeeping responsibility to

‘ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to

the task at hand.’” Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.) (alteration in

original) (emphases in original) (quoting Daubert v. Merrell Dow Pharms., 509 U.S. 579,

597 (1993)). “With respect to reliability, the district court must ensure that the proffered

expert opinion is based on scientific, technical, or other specialized knowledge and not on

belief or speculation, and inferences must be derived using scientific or other valid

methods.” Id. (internal quotation marks omitted) (emphasis omitted). “Relevant evidence,

of course, is evidence that helps ‘the trier of fact to understand the evidence or to determine

a fact in issue.’” Id. (quoting Daubert, 509 U.S. at 591).

As the Supreme Court has repeatedly explained, Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), offers district courts several guidepost

factors that the court “may consider” in assessing an expert’s evidentiary reliability to the

extent that the factors are relevant to the specific facts of the case at hand. See Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (emphasis in original). These factors

include “[w]hether a theory or technique . . . can be (and has been) tested”; whether the

theory or technique “has been subjected to peer review and publication”; whether a given

technique has a “high known or potential rate of error and whether there are standards

controlling the technique’s operation”; and “[w]hether the theory or technique enjoys

general acceptance within a relevant scientific community.” Id. at 149–50 (internal

quotation marks omitted). These factors “may or may not be pertinent in assessing

30 reliability, depending on the nature of the issue, the expert’s particular expertise, and the

subject of his [or her] testimony.” Id. at 150 (internal quotation marks omitted).

Dr. Rogers

Appellees called upon Dr. Shane Rogers to testify that a DNA marker of hog feces

could be found on the homes neighboring Kinlaw Farms, as support for the idea that hog

waste chemicals could and did reach their properties. The district court qualified Dr.

Rogers as “an expert in environmental engineering, . . . animal waste management

engineering and technology, and microbiology.” J.A. 6185. The district court was

informed that Dr. Rogers earned a Ph.D with honors in environmental engineering, has

held professorships in civil and environmental engineering for a decade, and previously

served as an environmental engineer at the United States Environmental Protection

Agency. His specialty was described as “the fate and transport of fecal pathogens.” Id. at

6184.

According to Appellant, Dr. Rogers offered unreliable opinions both in his report

and at trial. As support, Appellant cites purported errors in sample collecting and limited

training and experience of Dr. Rogers’s teams. Appellant further contends that Dr. Rogers

utilized a DNA indicator called Pig2bac to show the presence of fecal material “as a proxy

for odor” leaving the farm, even though he conceded that he is not an expert on how people

perceive odor and that this use of Pig2bac had not been peer-reviewed. Appellant’s Br. 35.

31 Appellant argues the district court did not discharge its Daubert “gatekeeping”

responsibility in admitting the testimony of Dr. Rogers. In this regard, Appellant asserts

that the court failed to “make any reliability findings” and did not use “Daubert’s

guideposts or any other factors to assess the reliability of [Rogers]’s testimony.”

Appellant’s Br. 34 (quoting Nease, 848 F.3d at 230). Appellant further complains that its

request for a Daubert hearing was refused.

As to the reliability of Dr. Rogers’s testimony, the errors Appellant alleges as to Dr.

Rogers’s sample collecting and labeling were explained to the district court in briefing as

resulting from Appellant’s last minute changes to the sampling location. Appellees

informed the court that these issues were fully considered in the report’s methodology.

And, while it is true that Dr. Rogers’s Pig2bac method itself has not been peer-reviewed,

this is only one of the several factors -- that do not “necessarily nor exclusively” apply in

every case. Kumho Tire Co. Ltd., 526 U.S. at 141 (citing the “flexible” nature of the

reliability test (quoting Daubert, 509 U.S. at 594)). “[A] trial court may consider one or

more of the more specific factors that Daubert mentioned when doing so will help

determine that testimony’s reliability.” Id.

Here, though Dr. Rogers’s work itself had not been peer-reviewed, Pig2bac, upon

which the report was based, has been used globally to demonstrate the traceability of swine

fecal wastes and was applied in this case using protocols for sampling and analysis by a

team of four Ph.D. holders, each with experience with field work, animal operations, and

environmental health and engineering. Moreover, Appellant was permitted to put on a

32 counter-expert, Dr. Jennifer L. Clancy, who critiqued Dr. Rogers’s report but who also

admitted that Dr. Rogers’s method “was acceptable,” at least “in some cases.” Dep. of

Jennifer Lee Clancy, Ph.D. at 4, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR

(E.D.N.C. Sept. 28, 2018), ECF No. 124-1.

Finally, any contention that Dr. Rogers was not qualified was met with evidence

that his area of expertise in waste management qualified him to opine on odor traceability,

waste management measures, and their testability. See Expert Report of Dr. Shane Rogers

at 4, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28, 2018),

ECF No. 81-2 (citing Dr. Rogers’s work with livestock agriculture and related emissions

and “development of good management practices to decrease potential exposures of

manure pollutants to neighbors and downwind produce growing areas”). Although Dr.

Rogers is not (and never claimed to be) an expert on the ability of humans to perceive odor,

that is beside the point. Appellees called Dr. Rogers as an expert on tracing how the

compounds creating odor travel in agricultural settings.

Taking all of this information as a whole, we conclude that the district court did not

abuse its discretion in determining that Dr. Rogers’s opinions were both reliable and

relevant to the issues in this case.

iii.

Further, as to Appellant’s grievance that the district court ruled on the admissibility

of the testimony of Dr. Rogers without first affording Appellant a hearing, this argument

fails.

33 A trial court has “considerable leeway in deciding in a particular case how to go

about determining whether particular expert testimony is reliable.” Kumho Tire Co., Ltd.,

526 U.S. at 152 (emphasis supplied). As the Supreme Court has made clear, Daubert’s

factors “do not constitute a definitive checklist or test.” Id. at 150 (emphasis in original)

(internal quotation marks omitted). “[T]he gatekeeping inquiry must be tied to the facts of

a particular case.” Id. (internal quotation marks omitted). Importantly, “[t]he trial court

must have the same kind of latitude in deciding how to test an expert’s reliability, and to

decide whether or when special briefing or other proceedings are needed to investigate

reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is

reliable.” Id. at 152 (emphasis in original).

As the Supreme Court has explained, the district court here was entitled to rely on

the parties’ materials without requiring further submissions or a Daubert hearing. The

district court’s ruling from the bench reflected that it considered the parties’ arguments and

briefing as to Dr. Rogers’s qualifications, area of expertise, and the relevance and reliability

of his report. We conclude that the district court had sufficient information before it -- as

detailed above -- such that refusing to grant a Daubert hearing was not an abuse of

discretion.

Dr. Dalton

According to Appellant, it was prejudiced by the district court’s “allowing only

Plaintiffs’ expert to testify on the central issue.” Appellant’s Br. 33 (emphasis in original).

34 While Dr. Rogers was permitted to testify, Appellant argues that its own odor expert, Dr.

Pamela Dalton, was improperly prevented from testifying about her “odor monitoring

study and her opinion regarding the lack of odor nuisance emanating from Kinlaw

Farm[s].” J.A. 8596. The district court qualified Dr. Dalton, a scientist specializing in

understanding the human perception of odor, as an odor expert, but it barred her from

offering certain testimony about odor monitoring she conducted at Kinlaw Farms.

Appellant’s arguments about the testimony of Dr. Dalton are inaccurate on a number of

levels.

First, contrary to Appellant’s assertions, the issues on which Dr. Rogers and Dr.

Dalton opined are not the same. 6 Dr. Rogers did not purport to opine as to whether odors

reaching Appellees’ properties constituted a nuisance or that an objective measure of

objectionable odors was even possible. Dr. Dalton, on the other hand, asserted “to a

reasonable degree of scientific certainty . . . that the normal operating activities at the farm

do not produce odors that travel offsite at an intensity, frequency or duration that would be

considered a nuisance level at the [Appellees’] properties.” Expert Report of Pamela

Dalton, Ph.D, MPH at 5, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C.

Sept. 28, 2018), ECF No. 96-1. Dr. Dalton also indicated, “It is generally agreed that unless

6 Though the Rules of Evidence do not guarantee perfect correspondence of adverse expert witness testimony, Appellant was in any event permitted to use Dr. Jennifer L. Clancy as a rebuttal witness to Dr. Rogers. Dr. Clancy’s testimony included her critique of Dr. Rogers’s methodology and report.

35 an odor can be detected at a 7:1 dilution or higher, it is not an objectionable odor.” Id. at

4.

Citing its obligation to ensure “a valid scientific connection to the pertinent inquiry,”

Nease, 848 F.3d at 229 (quoting Daubert, 509 U.S. at 592), the district court rejected the

proposed testimony of Dr. Dalton as to the odor levels emanating from Kinlaw Farms.

Though the court did allow Dr. Dalton to testify about the unreliability of human self-

reports of odor, it excluded Dr. Dalton’s “testimony about the odor monitoring study and

her opinion regarding the lack of odor nuisance emanating from Kinlaw Farm[s].” J.A.

8596. The district court explained, “North Carolina (unlike some other jurisdictions) has

not adopted a dilution to threshold ratio or any other objective standard for assessing

whether an odor is objectionable,” and even Dr. Dalton recognized “the perception of odors

is a highly subjective experience.” Id. For these reasons, the district court concluded that

her testimony “would have a strong likelihood of confusing or misleading the jury,” and

her opinion based on her report would likewise “not be helpful to the jury and would be

confusing.” Id.

We conclude that the exclusion of Dr. Dalton’s odor monitoring testimony was not

an abuse of discretion. Though an expert’s “opinion is not objectionable simply ‘because

it embraces an ultimate issue to be decided by the trier of fact’ -- [here, whether the odors

leaving Kinlaw Farms created a nuisance] -- . . . such an opinion may be excluded if it is

not helpful to the trier of fact under Rule 702.” Kopf v. Skyrm, 993 F.2d 374, 377–78 (4th

Cir. 1993) (quoting Fed. R. Evid. 704(a)). Dr. Dalton purported to provide objective

36 evidence as to whether Kinlaw Farms was giving off odors constituting a nuisance and

asserted that odors below a particular threshold were not considered objectionable. Given

that North Carolina has not adopted an objective measurement for nuisance odors, and that

Plaintiffs themselves would be testifying about their experiences relative to the nuisance at

their respective properties, the district court’s judgment that Dr. Dalton’s testimony would

not be helpful and would in fact confuse the jury was not an abuse of discretion.

The Supreme Court has cautioned appellate courts against “fail[ing] to give the trial

court the deference that is the hallmark of abuse-of-discretion review” in the expert

testimony context. General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). “[I]t is very

much a matter of discretion with the court whether to receive or exclude the evidence;

[such that] the appellate court will not reverse in such a case, unless the ruling is manifestly

erroneous.” Id. at 142 (quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)). This is

true whether the evidence is physical or testimonial, from a lay witness or expert. See id.

Here, none of the concerns lodged by Appellant render the district court’s evidentiary

decisions “manifestly erroneous.” Id. (quoting Spring Co., 99 U.S. at 658). And

Appellant’s argument that the district court erred in admitting one expert without the other

fails to appreciate that the testimonies speak to different issues -- one to whether odor-

causing particles are present and the other to whether the odors were causing a nuisance --

not to mention that no such parity is guaranteed by the Rules of Evidence. We therefore

affirm the district court’s decisions as to admission and exclusion of the testimonies of Drs.

Rogers and Dalton, respectively.

37 E.

Jury Instruction as to Vicarious Liability for Nuisance

Next, Appellant contends the district court misstated North Carolina law in its jury

instruction on nuisance. Specifically, the district court instructed the jury that a party can

be vicariously liable for nuisance “if it employs an independent contractor to do work

which that party knows or has reason to know to be likely to involve the creation of a

nuisance.” J.A. 9165. This language was based on section 427B of the Restatement

(Second) of Torts (1965). Appellant claims, however, that this instruction misstated North

Carolina law because the North Carolina Supreme Court has not explicitly adopted the

language from this Restatement.

“We review de novo whether the district court’s instructions to the jury were correct

statements of law.” Gentry v. East West Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th

Cir. 2016) (quoting Emergency One, Inc. v. Am. FireEagle, Ltd., 228 F.3d 531, 538 (4th

Cir. 2000)). “Even if a jury was erroneously instructed, however, we will not set aside a

resulting verdict unless the erroneous instruction seriously prejudiced the challenging

party’s case.” Id. (emphasis in original) (quoting Bunn v. Oldendorff Carriers GmbH &

Co. KG, 723 F.3d 454, 468 (4th Cir. 2013)).

First, we look to the language of Restatement section 427B, which states, “One who

employs an independent contractor to do work which the employer knows or has reason to

know to be likely to involve a trespass upon the land of another or the creation of a public

38 or a private nuisance, is subject to liability for harm resulting to others from such trespass

or nuisance.” The comments to section 427B explain that the section applies particularly

“where the contractor is directed or authorized by the employer to commit such a trespass,

or to create such a nuisance, and where the trespass or nuisance is a necessary result of

doing the work.” Restatement (Second) Torts § 427B cmt. b. But the section 427B rule

will apply even if the employer did not “direct[] or authorize[]” the nuisance; “[i]t is

sufficient that the employer has reason to recognize that, in the ordinary course of doing

the work in the usual or prescribed manner, the trespass or nuisance is likely to result.” Id.

As Appellant indicates, North Carolina’s highest court has not expressly adopted

the Restatement provision at issue. But Appellees urge that North Carolina case law

demonstrates the Restatement’s “likely to” liability theory applies here.

First and foremost, we are mindful of our role as a federal court sitting in diversity.

In Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011) we explained,

“[a] federal court acting under its diversity jurisdiction should respond conservatively when

asked to discern governing principles of state law.” Id. at 96 (citing Day & Zimmermann,

Inc. v. Challoner, 432 U.S. 3, 4 (1975) (per curiam)). As a result, “in a diversity case, a

federal court should not interpret state law in a manner that may appear desirable to the

federal court, but has not been approved by the state whose law is at issue.” Id. With this

principle in mind, in Rhodes, “we decline[d] the plaintiffs’ invitation to predict that the

West Virginia Supreme Court of Appeals would adopt the specific provisions of the

Restatement advanced by the plaintiffs.” Id. The Rhodes court identified a case from West

39 Virginia’s highest court directly conflicting with one of the Restatement theories the

plaintiffs urged and found nothing else to show the alternative theory had been “embraced”

by the state’s courts. See id. at 95–96.

“But in a situation where the [state’s highest court] has spoken neither directly nor

indirectly on the particular issue before us, we are called upon to predict how that court

would rule if presented with the issue.” Private Mortg. Inv. Servs., Inc. v. Hotel and Club

Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002). The state’s intermediate appellate courts’

decisions “constitute the next best indicia of what state law is, although such decisions may

be disregarded if the federal court is convinced by other persuasive data that the highest

court of the state would decide otherwise.” Id. (internal quotation marks omitted).

We are therefore tasked with understanding whether North Carolina has embraced

the jury instruction’s rule, as borrowed from the Restatement.

In Coastal Plains Utilities, Inc. v. New Hanover County, 601 S.E.2d 915 (N.C. Ct.

App. 2004) itself -- the case Appellant cites for what it says is a general rule against

contractor liability -- the intermediate Court of Appeals of North Carolina considered a

party’s argument that a contractor’s employer is liable for a trespass “if the independent

contractor’s trespass was committed at the direction of the employer, or where the work

necessarily involved a trespass or where trespass is likely to occur.” Id. at 925 (emphasis

supplied) (internal citations omitted). The plaintiff there directly cited Restatement section

427B for this principle and argued that the defendant’s water and sewer system was likely

to result in a trespass. See id. at 925–26. Without question, the court went straight to

40 applying the “likely to” test Appellant here challenges. Id. at 926. The independent

contractor rather than its employer designed the project, so the court observed, “[The

plaintiff] ha[d] not pointed to any evidence that the project, if properly designed, would

likely have caused a trespass. Without such evidence, the County could not be held liable

under this theory.” Id. at 926 (emphasis supplied). If “North Carolina does not hold

employers vicariously liable for hiring independent contractors to do work that is ‘likely’

to create a nuisance,” as Appellant contends, Appellant’s Br. 47 (emphasis in original), we

would expect that the Court of Appeals would have just said so, rather than attempting to

apply that very standard.

The district court’s jury instruction on the “likely to” exception here thus appears to

be consistent with North Carolina law. The district court here possessed North Carolina

precedent applying that very test, with nothing from the state’s highest court to suggest

otherwise. Application of the test appears in the very case Appellant advances to

demonstrate North Carolina’s rule. See Appellant’s Br. 47 (quoting Coastal Plains Utils.,

Inc., 601 S.E.2d at 923). Where the Rhodes court saw the West Virginia Supreme Court

of Appeals announcing a contrary rule to the Restatement and silence as to an alternative

Restatement theory, 636 F.3d at 96, the district court here was presented with North

Carolina precedent applying the exact exception provided in the jury instruction it selected.

Still, Appellant argues that the allegedly erroneous vicarious liability jury

instruction given by the district court “significantly prejudiced” Appellant’s defense and

permitted “reams of so-called ‘notice’ evidence about odor problems at other farms” to be

admitted. Appellant’s Br. 49 (emphasis omitted). In Appellant’s view, evidence that

41 Appellant knew of odor problems at contract grower operations other than Kinlaw Farms

would only be relevant under a theory of vicarious liability. But Appellant’s awareness of

the known issues associated with its prescribed farming methods is relevant under a direct

liability theory as well, such that -- even if the contested instruction as to vicarious liability

were erroneous -- prejudice did not result.

In North Carolina, harms caused by a “corporation’s acts or policies” constitute “a

theory of direct liability” in the punitive damages context. Everhart v. O’Charley’s Inc.,

683 S.E.2d 728, 737 (N.C. Ct. App. 2009). Therefore, the jury’s finding in favor of

punitive damages could rest on Appellant’s acts itself, in making and enforcing the

problematic policies and decisions, not merely on its direction of Kinlaw Farms. Evidence

of the known effects of Appellant’s policies and procedures, as uniformly applied across

their various grower operations including Kinlaw Farms, would therefore be relevant

irrespective of any supposed vicarious liability theory based on supervision of its

contractor.

As a result, we hold that the contested jury instruction did not prejudice Appellant

because the evidence admitted and the jury’s judgment equally apply under a theory of

direct liability such that, even if the instruction were erroneous, it did not prejudice -- much

less “seriously prejudice[]” -- Appellant. Gentry, 816 F.3d at 233 (emphasis in original).

42 F.

Punitive Damages

Finally, Appellant asks us to decide whether the district court erred in submitting

the issue of punitive damages to the jury, rather than deciding as a matter of law that

Appellees could not meet the punitive damages standard.

At the close of Appellees’ case and again at the close of all evidence, Appellant

moved for judgment as a matter of law that Appellees did not present sufficient evidence

to meet North Carolina’s standard for punitive damages. The district court denied the

motion each time.

We review denial of a motion for judgment as a matter of law de novo, with all

evidence and reasonable inferences taken in the light most favorable to the nonmoving

party. See Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 391 (4th Cir. 2014).

Judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 is proper

when “a party has been fully heard on an issue during a jury trial and the court finds that a

reasonable jury would not have a legally sufficient evidentiary basis to find for the party

on that issue.” Fed. R. Civ. P. 50(a)(1). A district court should grant judgment as a matter

of law “if the nonmoving party failed to make a showing on an essential element of his

case with respect to which he had the burden of proof.” Russell, 763 F.3d at 392 (internal

quotation marks omitted).

North Carolina makes punitive damages available to plaintiffs who demonstrate that

(1) the defendant is liable for compensatory damages and (2) either fraud, malice, or willful

43 or wanton conduct are present as aggravating factors and are related to the injury for which

compensatory damages were awarded. N.C. Gen. Stat. Ann. § 1D-15(a). A plaintiff bears

the burden of proving the existence of one of the aggravating factors by clear and

convincing evidence. Id. § 1D-15(b). Here, Appellees alleged “willful or wanton

conduct,” which North Carolina defines as “the conscious and intentional disregard of and

indifference to the rights and safety of others, which the defendant knows or should know

is reasonably likely to result in injury, damage, or other harm.” Id. § 1D-5. “Willful or

wanton conduct means more than gross negligence.” Id. (internal quotation marks

omitted).

North Carolina does not permit punitive damages to be awarded “solely on the basis

of vicarious liability for the acts or omissions of another.” N.C. Gen. Stat. Ann. § 1D-

15(c). “Punitive damages may be awarded against a person only if that person participated

in the conduct constituting the aggravating factor giving rise to the punitive damages, or if,

in the case of a corporation, the officers, directors, or managers of the corporation

participated in or condoned the conduct” in question. Id. In this context, we have

previously explained, “[t]he plain meaning of ‘condone’ is to ‘forgive or overlook,’ or

‘permit the continuance of.’” Vandevender v. Blue Ridge of Raleigh, LLC, 901 F.3d 231,

239 (4th Cir. 2018) (quoting Miller v. B.H.B. Enters., Inc., 568 S.E.2d 219, 225 (N.C. Ct.

App. 2002)). This means, for example, “[a] manager condones employees’ actions when

the manager is aware of those actions and fails to intervene.” Id. (citation omitted).

44 2.

Appellant argues Appellees did not put forth evidence from which a reasonable jury

could conclude Appellant engaged in willful or wanton conduct as an aggravating factor

supporting punitive damages. Appellant makes no argument that the conduct at issue was

not “related to” the claimed injuries. N.C. Gen. Stat. Ann. § 1D-15(a).

Appellant Claims Lack of Knowledge

Appellant’s primary wanton-and-willful argument is that it lacked knowledge of the

conditions associated with its operation at Kinlaw Farms, and therefore cannot be said to

have consciously disregarded any possible nuisance there. Appellant points, in part, to a

lack of complaints from Appellees to Appellant as to the Kinlaw Farms operation. But

Appellees argue that industrial hog operations are a “predictably messy business,” In re

Murphy Brown, LLC, 907 F.3d 788, 792 (4th Cir. 2018), and contend Appellant “has

known for decades that its ‘messy business’ is a nuisance when placed near residences,”

Appellee Br. 30.

Knowledge of Harms

A lack of complaints about Kinlaw Farms in particular does not save Appellant from

punitive damages. There can be no doubt that Appellees provided evidence of Appellant’s

deliberate corporate policies and evidence that Appellant knew these policies had

associated harms. Appellees’ proof in this regard included Appellant’s own collection of

45 media articles reporting conditions associated with its farming practices and policies, as

well as its knowledge of studies detailing the effects of lagoon-and-sprayfield operations

and types of effective remediation. 7 This evidence details effects on properties much

further from the various hog operations than Appellees’ were from Kinlaw Farms. Yet,

despite this knowledge, Appellant persisted in practices it knew were reasonably likely to

result in injury to neighboring properties. The practices include but are not limited to (i)

use of the existing lagoon-and-sprayfield waste management system without further

remedial measures; (ii) the use of “dead boxes” to collect corpses; and (iii) persistent and

unconstrained truck traffic.

Still, according to Appellant, the lack of evidence that it had received complaints

about Kinlaw Farms in particular forced Appellees to resort to what it calls a “nuisance per

se” argument. Appellant’s Br. 20. But Appellees’ theory of liability was not that all

lagoon-and-sprayfield farms are “inherently bad,” as Appellant phrases it, id. at 22, but

rather that they create known risks to neighbors that must be monitored and remediated to

avoid creating a nuisance. That is, Appellees sought to provide evidence sufficient for a

reasonable jury to conclude that, in practice, Appellant’s persistent use of lagoons and

sprayfields with only minimal remedial methods -- i.e. methods not comparable to known

7 Articles in Appellant’s possession and read into the record include accounts explaining that hog farms in Bladen County “stink” with a “sickening and nauseating odor,” such that neighbors “can’t plan outdoor activities because [they] never know which way the wind will blow.” J.A. 7451. In one letter in Appellant’s possession read at trial, a Bladen County resident explained that the hog farm in her community was affecting her “house and land and most of all [her] health” and that she had made verbal complaints about odor “several times.” Id. at 7449.

46 effective methods -- created a nuisance affecting neighbors of Kinlaw Farms, and that

Appellant knew its failure to fully remediate the harms associated with those practices was

“reasonably likely to result in injury, damage, or other harm.” N.C. Gen. Stat. Ann. § 1D-

5. For instance, Appellant admitted awareness of a number of available waste management

technologies (such as soil technologies or lagoon covers) that would prevent nuisance

odors from reaching neighbors and admitted that it could have its growers change to such

technologies if it so chose.

Yet Appellant argues that, because its farms were operated legally and consistent

with all requisite permits, Appellees failed to prove that its lagoon-and-sprayfield

operations were nuisances per se. This is beside the point. Lawful enterprises can

constitute a nuisance in fact. See Jones v. Queen City Speedways, Inc., 172 S.E.2d 42, 47

(N.C. 1970). The parties do not debate that Kinlaw Farms’s grandfathered use of the

lagoon-and-sprayfield system satisfied North Carolina’s permitting requirements. But

North Carolina law hardly “protects” these operations as Appellant suggests. Appellant’s

Br. 21. Indeed, new hog operations seeking permits in North Carolina cannot utilize the

lagoon-and-sprayfield methods as they existed at Kinlaw Farms and existing lagoon-and-

sprayfield farms are being slated for conversion to other methods of waste management.

See N.C. Gen. Stat. § 143-215.10I; N.C. Sess. Laws 1997–458. The farm’s

“grandfathering” does not serve to shield Appellant from nuisance liability, but rather is

evidence a jury could use to conclude Appellant knew its operations posed a threat of

nuisance to neighboring properties absent additional remedial measures.

47 Moreover, Appellees’ claims were not solely based on effects of lagoon-and-

sprayfield practices, but also on other known side effects associated with industrial hog

farming. For example, “dead boxes” and frequent traffic doubtlessly can create a nuisance

in fact by interfering with neighbors’ use and enjoyment of their land due to pests, odors,

and noises. Appellant’s former director Don Butler’s testimony reflected the company’s

knowledge that Bladen County residents complained about “odor, flies, noise, trucks, [and]

interference with their quality of life” from neighboring hog farms. J.A. 7466. A jury

reasonably could hold Appellant responsible for knowing about the likelihood of these

resultant harms but still persisting in its existing carcass-management and trucking policies.

Appellant cites Finch v. BASF Catalysts, LLC, No. 1:16-cv-1077, 2018 WL

3941978 (M.D.N.C. Aug. 16, 2018), for the principle that “general awareness of danger is

not enough to establish a conscious disregard of a known duty.” Id. at *5–6 (citation

omitted). Indeed, “knowledge of broad statements about potential harms under undefined

conditions is insufficient to show willful and wanton misconduct.” Id. at *6 (internal

quotation marks omitted). But, although Appellant may not have had received specific

complaints about Kinlaw Farms, the known dangers here were far from generic.

Appellant had far more knowledge than the defendant in Finch, who was only

“generally aware asbestos had health risks.” 2018 WL 3941978, at *6. Appellant was

specifically aware of the risks associated with its chosen policies: Appellant possessed

studies of Eastern North Carolina lagoon-and-sprayfield hog farms that explained the

effects of those operations on their neighbors’ properties, received comments specifically

about farms managed with its own methods, and knew Kinlaw Farms was in fact

48 implementing those practices as directed. The evidence demonstrates that Appellant

ensured that its growers, including Kinlaw Farms, uniformly applied its practices:

Appellant conducted weekly inspections of Kinlaw Farms to confirm that it maintained

total compliance with Appellant’s prescribed policies. From this, a jury could reasonably

conclude Appellant knew that Kinlaw Farms’s compliance with those procedures would

create nuisance conditions for its neighbors.

Further still, Appellees’ evidence demonstrated that Appellant knew the conditions

as they actually existed at Kinlaw Farms based on multiple weekly inspections of the

facility, including the proximity of neighbors, number of hogs, use of dead boxes, trucking

schedule, and absence of control technologies. Thus, Appellees provided evidence from

which a jury could conclude Appellant knew the procedures in place at Kinlaw Farms did

not adequately address -- and actually persisted in -- known harms associated with lagoon-

and-sprayfield operations and similar tightly controlled large hog farms in the region.

Intentional Disregard of Harms

In all, there is abundant evidence supporting Appellant’s conscious disregard of the

conditions at Kinlaw Farms. Appellees supplied evidence that Appellant knew the farming

methods it mandated at Kinlaw Farms -- including lagoon-and-sprayfield waste

management, minimal distance from neighboring properties, dead boxes, all-hours

trucking, and a high volume of hogs -- caused known impacts to neighbors. This evidence

included scientific studies and news reports in Appellant’s own collection, exposure to and

participation in years of accumulated public comment on Appellant’s practices, and visible

49 political pressure to ensure adequate mitigation of the effects of those practices -- practices

Appellant worked hard to ensure its contract growers, including Kinlaw Farms,

implemented precisely. Appellees further provided evidence that, despite this knowledge,

Appellant did not attempt to alleviate the effects of methods it knew Kinlaw Farms used at

Appellant’s direction. Appellees also provided evidence demonstrating Appellant was

aware of available technologies and its ability to alleviate the above described harms but

chose not to implement those technologies. Finally, Appellees’ evidence demonstrated

that Appellant did not even attempt to assess the impact of its operations on neighbors,

despite known risks.

Based on this abundance of evidence, a jury could reasonably conclude that

Appellant persisted in its chosen farming practices despite its knowledge of the harms to

its neighbors, exhibiting wanton or willful disregard of the neighbors’ rights to enjoyment

of their property.

Proactive Measures by Parent Companies

Appellant also attempts to defeat punitive damages by relying on proactive

measures taken by its parent companies as evidence that it could not have acted with

wanton or willful disregard. Appellant offers Faris v. SFX Ent., Inc., No. 3:04-cv-08, 2006

WL 3690632, at *7 (W.D.N.C. Dec. 12, 2006), for the proposition that “even ineffective

action may ‘show assertive effort inconsistent with disregard or indifference to the safety

of others,’” Appellant’s Br. 22–23 (quoting Faris, 2006 WL 3690632, at *7).

50 First, as a district court opinion, Faris has no precedential value. See Booker v. S.C.

Dep’t of Corrs., 855 F.3d 533, 538 n.1 (4th Cir. 2017). Beyond that, Faris fails to aid

Appellant’s cause. In Faris, having heard word that two patrons had been electrically

shocked in a stairwell, the defendant concert venue had a maintenance worker tape off the

fixtures suspected of causing the problem; thus, the tortfeasor acknowledged the problem

and took targeted action aimed at completely removing the risk of harm. 2006 WL

3690632, at *7. The court credited the defendant’s repeated efforts to correct, then test the

correction, of the danger. Id. Therefore, the district court in Faris concluded that the

plaintiff had not “produce[d] evidence that [the defendant] intentionally turned a blind eye

to the danger: he looked, he saw, and he acted,” though his action was unfortunately

ineffective. Id.

The Faris court itself contrasted the facts presented there with a situation -- much

like Appellant’s -- where the defendant “looked at [its options], saw the danger involved

in using [the chosen approach], and used it despite the known danger.” 2006 WL 3690632,

at *7. Here, Appellees presented clear and convincing evidence Appellant knew about

likely harms, denied their existence, and fought for them not to come to light. Appellees

also provided evidence demonstrating that the supposed proactive steps -- investment in

feed conversion and nutrient output -- were motivated by profit and/or efficiency of

operations, as opposed to concern for neighbors of Appellant’s hog operations. The fact

that Appellant’s policies expressly encouraged growers to avoid spraying at times

neighbors were known to be outside demonstrates that Appellant knew its sprayfield

operation was still likely to interfere with its neighbors’ use and enjoyment of their

51 property, even taking into account other supposed proactive efforts. Even further,

Appellant’s indifference to the effectiveness of its supposed remediation methods

reasonably implies corresponding indifference to the rights of others to be free from the

harms those methods are meant to avoid. See id. (noting defendant’s repeated efforts to

ensure problem was resolved).

Appellant’s conduct -- through its parent Smithfield -- might suggest an effort to

reduce some odor effects. But a jury could still reasonably find conscious disregard of

neighbors’ rights as evidenced by Appellant’s awareness that its methods fell far short of

abating the problem, while it rejected alternatives demonstrably able to do so. 8 Moreover,

even making proactive efforts to reduce fecal odor does not excuse Appellant from

persisting in other practices such as dead boxes and all-hours trucking without any attempt

to limit these practices out of respect for neighbors’ rights. On the whole, Smithfield’s

limited proactive measures cannot rescue Appellant from punitive damages.

8 We pause here to note the inapplicability of Ward v. Autozoners, LLC, 958 F.3d 254 (4th Cir. 2020) provided by Appellant as supplemental authority on this point. Ward is wholly inapposite to the case at hand. Ward applied a theory of vicarious liability pursuant to Title VII, which provides its own separate standard for punitive damages, requiring the employer to act “with malice or with reckless indifference.” 42 U.S.C. § 1981a(b)(1). In Ward, we concluded that an employee’s supervisors had been negligent “at best . . . not recklessly indifferent” where “there was simply not sufficient evidence demonstrating that [they] engaged in . . . steps [to address harassment] with ‘subjective appreciation’ of the inadequacy.” Id. at 268. Appellant attempts to use Ward to illustrate how punitive damages represent a “high standard [for a plaintiff] to meet,” but the standard the plaintiff there was asserting would apply punitive damages “imputed to an employer based solely on negligence by management level employees.” Id. at 269 & n.5 (emphasis supplied). Here, by contrast, we are of course not applying Title VII’s punitive damages standard, and the evidence in the record supports a reasonable jury finding more than negligence.

52 c.

Participation in or Condoning Misconduct

Appellant’s final argument as to why punitive damages should not have been an

available option for the jury is that Appellees failed to prove Appellant’s officers, directors,

or managers “participated in or condoned” any misconduct. Appellant’s Br. 24 (quoting

N.C. Gen. Stat. § 1D-15(c)).

Appellant’s Policies

Pursuant to North Carolina law, “[a] corporation may be subject to punitive damages

based on a theory of direct liability where the corporation’s acts or policies constitute the

aggravating factor.” Everhart v. O’Charley’s Inc., 683 S.E.2d 728, 737 (N.C. Ct. App.

2009) (citation omitted). In Everhart v. O’Charley’s, Inc., 683 S.E.2d 728 (N.C. Ct. App.

2009), an intermediate North Carolina appellate court considered whether a company’s

policy of requiring managers to complete an incident form before rendering aid to

customers in medical distress met the wanton-and-willful standard. There, the court

concluded a jury could reasonably find the company chose to protect the restaurant from

harm over preventing or mitigating harm to others, and from this the jury could find willful

or wanton disregard of guests’ rights. See id. at 736. As in Everhart, a reasonable jury

here could conclude that Appellant’s own policies reflected conscious and intentional

disregard of the safety and wellbeing of others in the interest of protecting the company’s

bottom line, rendering direct liability applicable. See id. at 737 (explaining that the

company’s policy “recklessly disregards customers’ safety and well-being in order to begin

53 the process of protecting O’Charley’s against potential litigation,” supporting direct

liability).

Here, Appellees advanced evidence that Appellant’s own corporate policies -- as

opposed to a separate policy of Kinlaw Farms -- prescribed the lagoon-and-sprayfield

system, waste and carcass management, and all-hours truck traffic underlying the

complaints. As a result, in contrast to vicarious liability for acts of its contractor,

Appellant’s liability is premised on the corporation’s own act of maintaining a set of

policies it knew perpetuated the effects of hog farming that (i) caused the state to outlaw

such operations within a mile of homes, except where neighbors came to the nuisance and

(ii) resulted in well-documented complaints and study results that applied to Kinlaw Farms,

since the policies mandated uniform conditions across Appellant’s grower sites.

Officers & Managers Condoning Conduct

Furthermore, the evidence demonstrates that Appellant’s officers and managers had

notice of the harms caused by its operations, based on studies, community meetings, and

political engagement. See N.C. Gen. Stat. Ann. § 1D-15(c). Yet Appellant’s leadership

persisted in mandating the culpable practices and participated in political efforts aimed at

minimizing regulation of harms known to be associated with Appellant’s chosen farming

methods. This evidence is sufficient to support punitive damages.

In Vandevender v. Blue Ridge of Raleigh, LLC, 901 F.3d 231, 238–39 (4th Cir.

2018), plaintiffs provided sufficient evidence to support an award of punitive damages by

demonstrating the defendants’ managers had notice that their policy of maintaining

54 inadequate staffing created a danger to their facilities’ patients. See 901 F.3d at 238–39.

Similarly, here Appellees provided sufficient proof by demonstrating Appellant’s

principals had notice that their policy of maintaining their standard lagoon-and-sprayfield

systems, bins, and trucks created annoyance and disturbance to neighbors, as evidenced by

(i) community comments; (ii) studies focused on their practices and region; (iii) successful

legislation/activism to ban their form of farming and find alternatives; (iv) regular

inspections of the farm in question, showing knowledge that its practices were by-the-book;

and (v) longstanding advocacy to limit nuisance suits by neighbors, from which a jury could

reasonably infer knowledge that Appellant intended to persist in its methods without

amending its conduct to respect its neighbors’ use and enjoyment of their property. We

did not require the plaintiffs in Vandevender to show the defendant knew the likely harms

had already come to pass at the facility in question.

It is therefore clear that a jury could find Appellant’s principals at minimum

“forg[a]ve,” “overlook[ed],” or “permit[ted] the continuance of’” the conditions at Kinlaw

Farms. Vandevender, 901 F.3d at 239 (each quoting Miller, 568 S.E.2d at 225). Appellees

here provided evidence that Appellant’s decisionmakers actually required Kinlaw Farms’

continued application of the problematic policies and attendant harms (such as dead boxes),

in the face of statewide policy pressure to change these methods due to their known effects

on neighbors when used as Appellant prescribed and with the knowledge that area residents

were complaining about odor, flies, noises, and trucks associated with industrial hog

operations.

55 Therefore, considering all evidence in the light most favorable to Appellees, we

conclude the district court did not err in allowing the jury to decide whether Appellant’s

principals “participated in or condoned” the aggravating conduct -- here, requiring its

growers to persist in methods known to have associated harms.

In sum, Appellees presented “clear and convincing evidence that [Appellant] w[as]

fully aware” of the nuisance effects of its prescribed farming practices “yet did nothing or

worse.” Vandevender, 901 F.3d at 239. From the evidence here, a jury could reasonably

conclude Appellant and its officers “knew -- because they were repeatedly told -- that [their

currently prescribed remediation of odors, noise, and pests] was reasonably likely to result

in [injury to neighboring properties].” Id. at 240. “They nonetheless deliberately continued

to disregard duties imposed by law” -- here the duty not to harm neighbors’ use and

enjoyment of their own land -- “because doing so would increase profits.” Id. “This is

precisely the type of egregious conduct punitive damages are meant to deter.” Id. (citing

N.C. Gen. Stat. § 1D-1, which explains that the purpose of punitive damages is “to punish

a defendant for egregiously wrongful acts and to deter the defendant and others from

committing similar wrongful acts”).

Having reviewed all of the evidence in this case, we lack reason to reject either the

district court’s submission of the question of punitive damages to the jury or the jury’s

determination here that clear and convincing evidence established that punitive damages

apply.

56 G.

Financial Evidence

Appellant’s final assignment of error is that the district court erred by admitting

financial information of Appellant’s “corporate grandparent” Smithfield and “ultimate

parent entity” WH Group, and by refusing to bifurcate the punitive damages portion of the

trial from the liability phase due to the allegedly inflammatory nature of such evidence.

Appellant’s Br. 26. The contested evidence includes the values of Appellants’ parent

companies and their executive compensation.

We address this “parent evidence” argument in two parts. First, we analyze the

evidence in the context of the jury’s verdict as to liability. Then, we do the same with

regard to punitive damages.

Parent Evidence with Regard to Nuisance Liability

Federal Rule of Evidence 403 states that a “court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of,” among other things, “unfair

prejudice.” Fed. R. Evid. 403. “Except under the most ‘extraordinary’ of circumstances,

where [the district court’s] discretion has been plainly abused, this Court will not overturn

a trial court’s Rule 403 decision.” In re C.R. Bard, Inc. MDL. No. 2187, Pelvic Repair Sys.

Products Liab. Litig., 810 F.3d 913, 920 (4th Cir. 2016) (internal quotation marks omitted).

57 b.

We turn first to assess the probative value of the challenged financial evidence with

regard to liability. The finances and executive compensation expenditures of Smithfield

and WH Group were relevant to the question of nuisance liability because they are

probative of the feasibility or impracticality of Appellant’s adoption of mitigation measures

to avoid the harm to neighbors’ lands. In this regard, Appellees put forward testimony

indicating that if Appellant wanted to cover its lagoons, Smithfield or WH Group would

cover the costs. Specifically, Appellant’s president George Schmidt testified as follows:

[Appellees’ Counsel]: If or when -- if the hog production division wanted to go cover the lagoons, it could go ask Smithfield or WH Group for the money to do it, right?

Mr. Schmidt: That would be the procedure, yes.

[Appellees’ Counsel]: And, as a matter of fact, if you wanted to do it, that would be where you’d get the money, you’d go to Smithfield or the WH Group for them to give you the money, right?

Mr. Schmidt: Correct.

J.A. 7908. The ability of Smithfield and WH Group to pay is therefore relevant evidence

of whether Appellant would face undue hardship in abating the nuisance. If the cost of

remediation were to be borne by a highly profitable parent company, Appellant’s claim

that it would be harmed -- or that financial limitations prevented successful remediation --

rings hollow. Indeed, the AG Agreement itself committed Smithfield to providing

financial assistance to convert lagoon-and-sprayfield systems operated by its contract

growers. Smithfield’s ability to pay to do so thus is fundamental in deciding whether such

58 conversions were feasible. And significantly, Appellant conflated itself with its parent

company, Smithfield, when asking the district court to credit Appellant with the AG

Agreement and other policies adopted by Smithfield as though they were Appellant’s own.

For all these reasons, we deem the parent financial evidence relevant to the question

of whether any feasible effective remedial measures were out of Appellant’s reach.

Therefore, we cannot conclude that the district court abused its discretion in deciding the

probative value of this evidence -- which speaks to a key defensive argument raised -- was

not “substantially outweighed” by unfair prejudice. Fed. R. Evid. 403. The district court

carefully considered whether mention of Appellant’s parent companies’ finances was

unduly prejudicial and whether this prejudice outweighed the probative value of that

information. Further, the court made clear that the parent companies’ information could

not itself be used to argue in favor of punishing Appellant. See J.A. 5726–27 (explaining

that comparing individual executives’ salaries to local residents or using the foreign

identity of Appellant’s corporate grandparent could not be used to argue in favor of

punishment). The court also recognized that keeping information about parent companies’

ability to pay from the jury would permit a defendant to unfairly claim both that it is too

poor to afford existing remedial measures, but also that it has been proactive (through its

parent company) in developing new alternatives. And because Appellant wanted to claim

Smithfield’s conduct as a shield, the district court reasonably concluded that evidence of

Smithfield’s ability to cover remediation costs also could come in as a sword.

Furthermore, due to North Carolina’s particular nuisance framework, mention of

the parent companies’ identities and ownership bears a cognizable relationship to the

59 question before the jury. See N.C. Pattern Jury Instr. (Civ.) § 805.25 (noting the relevance

of the “nature, utility, and social value of the defendant’s operation” to the existence of a

nuisance). The task before the jury was to compare the community’s benefit with

Appellees’ harm, and the fact that much of the profit from the injurious conduct left the

area while Appellant and its local grower Kinlaw Farms were left unable to afford to abate

the harm speaks to whether and how much the community benefitted from the operation.

Ultimately, the district court did not bar Appellant from claiming its parent

companies’ efforts as its own, but likewise also did not bar evidence of those companies’

abilities to do better. Though Appellant admits that contrasting “the community’s benefit

against the harm to [Appellees]” is consistent with North Carolina law, Appellant’s Br. 28

(citing N.C. Pattern Jury Instr. (Civ.) § 805.25), it nonetheless contends that conflating

Appellant and its parent companies in this analysis was unnecessary and unfair. But having

invoked its parent companies’ identities in its defense, Appellant cannot complain that the

court allowed the jury to have information about those entities for the purposes of

comparing benefits and harms as delineated by North Carolina law. Where this is the case,

we cannot override the district court’s considered judgment that the evidentiary value of

the parent companies’ information was not substantially outweighed by undue prejudice.

Parent Evidence with Regard to Punitive Damages

Though we decline to overturn the district court’s admission of Appellant’s parent

company financial evidence relevant to liability, we reach a different conclusion as to

bifurcation and the amount of punitive damages. Specifically, we conclude that the value

60 and compensation evidence was relevant to whether punitive damages should have been

awarded and do not disturb the district court’s considered judgment that any prejudice

associated with that information did not substantially outweigh its probative value in that

context. However, this evidence does not bear the same level of relevance to the

determination of the amount of punitive damages supported by Appellant’s conduct.

Because of this irrelevance and because of the particular ability of potentially inflammatory

evidence to sway a jury’s calculation of punitive damage awards, we vacate the judgment

below as to the amount of punitive damages and remand for rehearing on that issue alone.

We review a district court’s decision not to bifurcate a trial for abuse of discretion.

Shetterly v. Raymark Indus., Inc., 117 F.3d 776, 782 (4th Cir. 1997).

North Carolina has a mandatory bifurcation statute. N.C. Gen. Stat. § 1D-30. “But,

in our federal system, bifurcation is a case-specific procedural matter within the sole

discretion of the trial court.” Nester v. Textron, Inc., 888 F.3d 151, 163 (5th Cir. 2018)

(citation omitted). Federal courts sitting in diversity “are to apply state substantive law and

federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965). Therefore, “a district

court is simply not bound by state law when deciding whether to bifurcate.” Nester, 888

F.3d at 163 (citing Getty Petroleum Corp. v. Island Transp. Corp., 862 F.2d 10, 15 (2d Cir.

1988) and Rosales v. Honda Motor Co., 726 F.2d 259, 260 (5th Cir. 1984)); see Shugart v.

Cent. Rural Elec. Co-op, 110 F.3d 1501, 1504 (10th Cir. 1997); Sellers v. Baiser, 792 F.2d

690, 694 (7th Cir. 1986); Moss v. Associated Transp., Inc., 344 F.2d 23, 27 (6th Cir. 1965).

61 Federal Rule of Civil Procedure 42(b) specifies, “[f]or convenience, to avoid

prejudice, or to expedite and economize, the court may order a separate trial of one or more

separate issues . . . .” As we have explained, “when it is determined that the evidence

relevant to the appropriate amount of punitive damages will be prejudicial to the jury’s

consideration of liability or compensatory damages, bifurcation of the trial under Fed. R.

Civ. P. 42(b) remains an available solution.” Mattison v. Dallas Carrier Corp., 947 F.2d

95, 110 (4th Cir. 1991) (citation omitted). This does not mean it is the only solution.

“[S]ince the evidence usually overlaps substantially, the normal procedure is to try

compensatory and punitive damage claims together with appropriate instructions to make

clear to the jury the difference in the clear and convincing evidence required for the award

of punitive damages.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021

(9th Cir. 2004) (alteration in original) (quoting McLaughlin v. State Farm Mut. Auto. Ins.

Co., 30 F.3d 861, 871 (7th Cir. 1994)).

“The party requesting separate trials bears the burden of convincing the court that

such an exercise of its discretion will (1) promote greater convenience to the parties,

witnesses, jurors, and the court, (2) be conducive to expedition and economy, and (3) not

result in undue prejudice to any party.” F&G Scrolling Mouse, LLC v. IBM Corp., 190

F.R.D. 385, 387 (M.D.N.C. 1999) (citations omitted).

Appellant raises a very real specter of prejudice stemming from the parent company

financial information. The Supreme Court has reminded us that “the presentation of

evidence of a defendant’s net worth creates the potential that juries will use their verdicts

62 to express biases against big businesses, particularly those without strong local presences.”

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003) (quoting Honda

Motor Co. v. Oberg, 512 U.S. 415, 432 (1994)). Importantly, “[o]ur concerns are

heightened when the decisionmaker is presented . . . with evidence that has little bearing

as to the amount of punitive damages that should be awarded,” because “[v]ague

instructions, or those that merely inform the jury to avoid passion or prejudice do little to

aid the decisionmaker in its task of assigning appropriate weight to evidence that is relevant

and evidence that is tangential or only inflammatory.” Id. at 418 (internal quotation marks

As explained above, the district court here did not abuse its discretion where,

through the AG Agreement and Appellant’s admissions, Appellant’s ability to remediate

harms necessarily implicated the financial worth and expenditures of its parent companies.

But having decided to admit this evidence on the question of liability, the district court

nonetheless needed to evaluate the effect that same information would have in the context

of punitive damages and whether the risk of prejudice -- as described by the Supreme Court

-- required bifurcation.

A jury must be convinced by clear and convincing evidence to award punitive

damages. This is a higher evidentiary burden than applies to the simple question of whether

a defendant is liable for a nuisance. In finding nuisance, the jury had already concluded

that Appellant had the ability to abate the harm without undue hardship. As with nuisance

liability, we recognize the relevance of parent company financials relative to punitive

damages where, as here, a defendant admits the connection of its parents to its own ability

63 to abate a nuisance. However, with regard to determining the amount of punitive damages

to award, we fail to see what value the parent company financial evidence would have that

could possibly outweigh the substantial risk of prejudice it carries in that delicate context.

As the Supreme Court has recognized, inflammatory financial evidence can be

especially destructive in the context of punitive damages because of the leeway given to

juries in selecting the appropriate amount necessary to punish and deter. See State Farm

Mut. Auto Ins., 538 U.S. at 417 (explaining how “punitive damages pose an acute danger

of arbitrary deprivation of property” because of the “wide discretion” given to juries “in

choosing amounts”). To be sure, juries are and should be afforded substantial room to

exercise their discretion, but it is the court’s responsibility to ensure that the tools the jury

uses to exercise that discretion are appropriate. See Mattison, 947 F.2d at 105 (“When a

jury is left to its own devices to take property or mete out punishment to whatever extent

it feels is best in the course of the process, our sensibilities about that process are

offended.”).

“[A] defendant’s financial position is a proper consideration in assessing punitive

damages.” See Stamathis v. Flying J, Inc., 389 F.3d 429, 442 (4th Cir. 2004) (citing Pacific

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22 (1991)). The jury here was instructed to

consider Appellant’s ability to pay punitive damages, and the district court did not

reference Appellant’s parents’ ability to pay. This makes sense: while testimony indicated

that Appellant’s parent companies would be responsible for remediation costs -- justifying

admission of the financial evidence on the matter of liability -- there was no such evidence

64 that Appellant’s parent companies would be made to bear the costs of a punitive damage

award.

Still, without a more specific jury instruction, a jury exposed to the high-dollar

values of Appellant’s parent companies and the parents’ executive compensation could

understandably -- but inappropriately -- apply that information when it came time to decide

how much money would be required for Appellant to “feel” the effect of the damages

award. Appellees used the high values and high-dollar compensation figures of Smithfield

and WH Group to argue that Appellant, through its relationship to these wealthy parents,

“ha[d] the money to eliminate the odor, [yet] cho[se] to do nothing.” J.A. 5817; see also

J.A. 9050 (“They know there is a problem. They know there is a fix. They willfully choose

not to do anything about it. Not even figure out how much it would cost [to fix], but yet

they pay $245 million to four people over four years. That’s the kind of money they can

spend when they want to.”) But though this evidence is relevant to the question of whether

Appellant’s refusal to change policies and technologies was a willful choice, it does not

bear the same relevance to the proper amount of punitive damages necessary “to punish

[Appellant] for egregiously wrongful acts.” N.C. Gen. Stat. § 1D-1.

Thus, given the irrelevance of the parents’ financial information to the amount of

punitive damages, and given the lack of guidance provided to the jury as to how that

information is to be applied in the analysis, in the absence of a limiting instruction, we

conclude that the district court should have bifurcated the trial pursuant to Federal Rule of

Civil Procedure 42(b) in order to avoid any undue prejudice associated with such evidence.

To be quite clear -- we do not disturb the district court’s decision to submit the availability

65 of punitive damages to the jury or the jury’s determination that those damages are

appropriate in this case; rather, we are only remanding for a new calculation of those

damages absent the parent company financial evidence that threatens significant prejudice

without any relevance to the question of the appropriate amount of punitive damages to

“Exacting appellate review ensures that an award of punitive damages is based upon

an application of law, rather than a decisionmaker’s caprice.” State Farm Mut. Auto. Ins.,

538 U.S. at 418 (internal quotation marks omitted). Juries are given greater latitude in

assigning value to punitive damages than they possess in the liability and compensatory

damages contexts, where the damages awarded are grounded in actual losses to the

plaintiff. Because of this distinction, our deferential standard of review requires us to only

redress the evidentiary prejudice as it pertains to the amount of punitive damages, where

financial prejudice has a unique ability to do harm to a defendant. Here, a limited remand

so that the amount of the punitive damages award can be reconsidered with constraints on

the parent financial information will ensure that the award is based solely on Appellant’s

own conduct and ability to pay, and not on any unfair prejudice against its status as the

subsidiary of a wealthy parent. We therefore vacate the jury’s judgment as to the amount

of punitive damages, and remand for rehearing with omission of the inflammatory parent

company financial evidence.

For the foregoing reasons, we conclude that none of Appellant’s arguments require

the grant of a new trial wholesale. We do however remand this case for the limited purpose

66 of determining the proper amount of punitive damages without the parent company

financial evidence, including executive compensation.

AFFIRMED IN PART; VACATED AND REMANDED IN PART

67 WILKINSON, Circuit Judge, concurring:

I am pleased to concur in Judge Thacker’s well-reasoned opinion. It ably explains

why compensatory and punitive damages were appropriate here and why the admission of

certain financial information, specifically the valuation and executive compensation

structure of Murphy-Brown’s parent companies, was especially prejudicial with respect to

the amount of any punitive award. As Judge Thacker notes, punitive damages represent

an especially unmoored and ungrounded form of relief, and it makes sense to keep their

consideration free of gratuitously inflammatory evidence. The danger of an unleashed jury,

moreover, is far greater where it sets the amount of a punitive award than when it

determines willfulness and wantonness. See Sasaki v. Class, 92 F.3d 232, 238 (4th Cir.

1996) (affirming a jury finding of punitive liability while remanding for a redetermination

of punitive damages). It is that danger that Judge Thacker rightly perceives requires a

remand here.

I write separately, however, to highlight the facts in this case that support the jury’s

finding that liability for compensatory and punitive damages in some amount was

warranted. It is past time to acknowledge the full harms that the unreformed practices of

hog farming are inflicting.

This is not to say that the industry is unimportant. In fact, quite the contrary. Hog

farming is central to economic life in North Carolina. It supports 46,000 much-needed,

mostly low-skill jobs and accounts for approximately $11 billion of the state’s annual

economic productivity. Brief of the American Farm Bureau Federation et al. as Amici

Curiae Supporting Appellant 8, McKiver v. Murphy-Brown (No. 19-1019) [hereinafter

68 Am. Farm Bureau Brief]. 1 This economic activity is concentrated in the state’s relatively

rural eastern region. Sampson, Duplin, and Bladen counties collectively contain over forty

percent of the state’s hog farms, where size undoubtedly makes for market efficiencies.

See id. at 8–9. The efforts of those who work in these farms play an important role in

preserving the nation’s food supply. Pork products include not only bacon, sausage, ham,

and pork chops, but also byproducts with pharmaceutical applications. Inedible byproducts

such as pig hair and skin can be useful in producing, respectively, such things as paint

brushes and wallets. John R. Romans et al., Purdue University, Pork By-Products,

https://www.animalgenome.org/edu/PIH/128.html.

It is the hog’s misfortune, and, I suppose, humanity’s good fortune that it has

become such an indispensable animal. To safeguard the hog farming industry, the state

legislature amended the Right to Farm Act, limiting future nuisance recoveries to declines

in a property’s market value. See N.C. Sess. Laws 2017-11, codified at N.C. Gen. Stat. §

106-702. The state had also generally capped punitive awards per plaintiff at “three times

the amount of compensatory damages or two hundred fifty thousand dollars ($250,000),

whichever is greater.” N.C. Gen. Stat. § 1D-25(b). In passing these laws, the state

legislature acted within its constitutional police powers.

1 While it is of course true that amicus briefs were not part of the jury’s consideration, they align in this case to an exceptional extent with the extensive trial testimony that is herein referenced.

69 But our job is different. In this case, the ancient tort of nuisance, which has long

refereed disputes between neighbors, see e.g., Tenant v. Goldwin (1705) 92 Eng. Rep. 222,

is claimed to have a very contemporary application. Plaintiffs, almost all of modest means

and minorities, live in close proximity to Kinlaw Farms, the hog farm at issue in this case.

They have brought suit contending that Murphy-Brown, which by virtue of contract

directed Kinlaw’s operations, “substantially” and “unreasonabl[y]” interfered—in a

“willful and wanton” manner—with the “use and enjoyment of their property.” Complaint

at 35, 39, McKiver v. Murphy-Brown, LLC, No. 4:14-cv-00153-F (E.D.N.C. Aug. 21,

2014); see also Morgan v. High Penn Oil Co., 77 S.E.2d 682, 689 (N.C. 1953); N.C. Gen.

Stat. § 1D-15(a). The industry counters that such suits pose “a dire threat to hog farming”

in North Carolina, and—even more urgently—“an existential threat to the livelihoods of

farmers and the food security of our Nation.” Am. Farm Bureau Brief 3, 9. As noted

above, I fully recognize the essential contributions of the pork industry in general, and of

North Carolina’s hog farms in particular. I am also not so naive as to imagine that hog

farming could ever be an antiseptic enterprise. But the record here reveals outrageous

conditions at Kinlaw Farms—conditions that, when their effects inevitably spread to

neighboring households, violated homeowners’ rights to the healthful enjoyment of their

property. All this the jury recognized, and its verdict, once capped, was essentially a just

one.

How did it come to this? What was missing from Kinlaw Farms—and from

Murphy-Brown—was the recognition that treating animals better will benefit humans.

What was neglected is that animal welfare and human welfare, far from advancing at cross-

70 purposes, are actually integrally connected. The decades-long transition to concentrated

animal feeding operations (“CAFOs”) lays bare this connection, and the consequences of

its breach, with startling clarity. Once, most hogs were raised on “smaller, pasture-based

hog farms.” J.A. 618. Now, the paradigm has shifted: “large numbers of hogs, often many

thousands” crowd together in each of the many cramped “confinement structures” that

comprise the typical hog CAFO. J.A. 618; see also USDA Nat’l Agric. Statistics Serv.,

2017 Census of Agriculture: Vol. 1, Ch. 1: U.S. National Level Data, Tbl. 23: Hogs and

Pigs – Inventory by Type of Producer: 2017. The following illustrates how Kinlaw, an

endpoint of this pasture-to-CAFO transition, created serious ecological risks that, when

imprudently managed, bred horrible outcomes for pigs and humans alike. 2

The warp in the human-hog relationship, and the root of the nuisance in this suit,

lay in the deplorable conditions of confinement prevailing at Kinlaw, conditions that there

is no reason to suppose were unique to that facility. Confinement defined life for the over

14,000 hogs—all of which Murphy-Brown owned—that Kinlaw Farms had crammed into

its twelve confinement sheds. J.A. 6197–98, 6908. Consistent with Kinlaw’s role as a

“finishing” facility, hogs arrived at around forty pounds, to be fattened to over seven times

their starting weight. J.A. 6200. The one thing that never grew with the hogs, though, was

the size of their indoor pens. Even though “[h]ogs grow bigger now,” id., the pens’ design

has not changed a whit in twenty-five years. See J.A. 6200, 7823. The sad fate of Kinlaw’s

2 Following the jury verdict, Smithfield Hog Production stopped placing new hogs at and removed existing hogs from Kinlaw Farms. J.A. 9322–23.

71 hogs was, therefore, to remain in these densely packed pens from the time they arrived to

the time they were shipped for slaughter, straining in vain as their increasing girth slowly

but surely reduced them to almost suffocating closeness. See J.A. 6198.

To manage waste under such conditions, the concrete floors of Kinlaw’s sheds were

partially slatted. Id. These slats were supposed to allow the hogs’ feces and urine to fall

through to a gutter system below. J.A. 6200–02. But due to the close confinement just

described, hogs were often packed too tightly to defecate over the slats. J.A. 5211. As a

result, waste built up, id., and as photos of Kinlaw’s facilities show, hogs ended up covered

in feces. J.A. 6758–64; see also J.A. 5828–29, 8510, 9027.

The waste that did make it through the slats to the gutter system was flushed four to

six times a day to one of three nearby open-air “lagoons”—essentially three uncovered, 8

million-gallon cesspools. J.A. 6202–03; see also J.A. 6740–41. From there, the waste

material was sprayed into the air, to fertilize nearby crops—a waste disposal method known

as the lagoon-and-sprayfield system. J.A. 4980, 6203–04, 6958–59.

The dangers endemic to such appalling conditions always manifested first in animal

suffering. Ineluctably, however, the ripples of dysfunction would reach farm workers and,

at last, members of the surrounding community. To start, take the basic issue of air quality.

When pigs defecated, gases accumulated in their sheds. J.A. 5217, 6198–99. But at certain

concentrations—only possible under conditions of overcrowded, indoor confinement—

these gases could become toxic, even fatal, to the hogs. J.A. 6199. To prevent its hogs

from dying in their own wind, Kinlaw ventilated their sheds by opening curtains that

released these noxious fumes unfiltered into the air outside. J.A. 5217, 6197–99.

72 Viewing the sheds’ diminished air quality solely as a “hog problem” misses the very

real hazard it represented for workers. See Brief for Dr. Lawrence B. Cahoon et al. as

Amici Curiae Supporting Plaintiffs-Appellees 9–15, McKiver v. Murphy-Brown (No. 19-

1019) [hereinafter Dr. Cahoon Brief]. Workers, after all, breathe the same air as the hogs

they tend. Given that these gases could kill pigs, it is entirely unsurprising that

“approximately 50 percent of [CAFO] workers experience one or more of the following

health outcomes: bronchitis, toxic organic dust syndrome, hyper-reactive airway disease,

chronic mucous membrane irritation, occupational asthma and hydrogen sulfide

intoxication.” J.A. 8244.

What may seem surprising, but should not, is the gaseous spiral’s final arc: the air

quality threat posed to Kinlaw’s neighbors. Like workers, neighbors living within two

miles of hog CAFOs suffer from elevated rates of respiratory problems. J.A. 8242–43.

Nearby residents may also suffer from aggravated rates of high blood pressure, depression,

and infant mortality. Dr. Cahoon Brief 10–13; see also J.A. 8243. One study has even

shown that children attending schools as far as three miles away from a hog CAFO face an

increased likelihood of presenting asthma-related symptoms. Dr. Cahoon Brief 13; see

also J.A. 935.

This triangular rotation among animals, workers, and homeowners is no fluke. It

repeats again and again. Consider another similarly structured example: the problem of

viral disease. It is well-established that close confinement leads to the “increased risk of

the spread of disease” between hogs. J.A. 5206; see also Brief for the Humane Society of

the United States as Amici Curiae Supporting Plaintiffs-Appellees 17, McKiver v. Murphy-

73 Brown (No. 19-1019) [hereinafter Humane Society Brief]. The buildup of excrement is,

for example, “conducive to . . . breeding flies and insects,” J.A. 5211, which are known

“vectors of disease,” J.A. 2567. Indeed, Kinlaw Farms suffered an outbreak of Porcine

Epidemic Diarrhea Virus. J.A. 1801. It was, again, the hogs that suffered first.

But humans are not far behind. Pathogens like H1-N1 “swine flu,” which incubate

and mutate in pigs, can sometimes jump to human hosts. J.A. 5204–05, 5972–73. The

swine flu outbreak of 2009, which led to almost 275,000 hospitalizations and 12,500 deaths

in the United States, put the country on notice of that fact. In any future pig-to-human

transmission, individuals working directly with affected pigs at facilities like Kinlaw are

likely to be among the first infected, followed shortly thereafter by other members of their

community.

Analogous is the problem of diseases communicated not virally, but rather through

bacterial infection. And again, it starts with the harms that pigs suffer in confinement: to

compensate for the stressors of close confinement, CAFOs commonly administer

antibiotics at subtherapeutic concentrations both “as prophylactic drugs and to increase

feed efficiency and daily weight gain.” J.A. 5205; see also J.A. 5973; Humane Society

Brief 17, 23. The predictable result is the genesis of novel strains of antibiotic-resistant

bacteria. J.A. 5205. These strains, much more difficult to eradicate, plague the hogs more

acutely.

As before, though, the problem’s impact on pigs is only the first link in a longer

chain that wraps around workers and the surrounding homeowners. Antibiotic-resistant

bacteria can spread from hogs to people, J.A. 5971–72; see also J.A. 5206 (“The capacity

74 for human care workers, their families, and residents of nearby communities to become

infected with antibiotic-resistant microorganisms from swine CAFOs has long been

documented.”), and even beyond the farm’s neighboring communities. J.A. 5972–73. The

human health implications arising from antibiotic-resistant bacteria are severe: “if we use

antibiotics . . . when we don’t really need them to treat people, they’ll lose their

effectiveness when we really need them.” J.A. 5971; see also J.A. 5205–06.

The fourth and, in many senses, final confinement-related variation on this theme is

the sheer amount of death at hog CAFOs like Kinlaw. Up to “ten percent of pigs die in

confinement most likely due to complications from their overcrowded environment and

lack of individualized veterinary care.” Humane Society Brief 11; J.A. 9014. The hogs at

Kinlaw faced a slightly lower, but still significant, mortality rate of around seven percent.

See J.A. 5201–02. This figure assumes that Kinlaw operated at full capacity. There is

some suggestion that Kinlaw operated above capacity to account for the fact that “some

[hogs] are going to die.” J.A. 6908. 3

Dying hogs imperil human well-being in other ways. As Judge Thacker has noted,

the problem lies in Kinlaw’s method of storing and disposing of the numerous dead hogs.

See Maj. Op., ante at 48–49. Kinlaw piled carcasses into uncovered storage containers that

3 The calculation works are follows. Kinlaw Farms had a permitted hog count of 14,688. J.A. 5202. Based on the typical finishing operation turnover of 2.5 sellouts per year, J.A. 5201, approximately 36,720 hogs passed through Kinlaw in a year (= 14,688 x 2.5). Kinlaw had average weekly fatalities of 49 hogs, J.A. 5202, or 2,548 hogs per year (= 49 * 52). Thus, around 6.9% of hogs passing through Kinlaw were expected to die (= 2,548 / 36,720).

75 plaintiffs call “dead boxes.” J.A. 4956, 5679–80, 7867. Unfortunately for Kinlaw’s

neighbors, exposed hog carcasses attracted buzzards and flies, which range with scant

concern for property rights. J.A. 8446. A sorely unwelcome buzzard startled one

neighbor’s little girl so badly that she slammed a door on her foot. J.A. 7757. Other

homeowners detailed their distress at finding flies in their hair and food, J.A. 7317, and

suffering invasions of “more gnats than you’ve ever seen in your life,” J.A. 7352. These

unwelcome visitations were not minor inconveniences. They were hazardous to health and

vectors of disease. See J.A. 1098–99, 2566–67. And they originated with the mistreatment

of Kinlaw’s hogs.

The plentiful hog carcasses of Kinlaw Farms also posed a nuisance to neighbors

when they were carted away daily in “dead trucks,” which caused the worst of the odors.

J.A. 7260–62. Other Kinlaw trucks created noise and dust ceaselessly. As part of the initial

design, Murphy-Brown placed a private service road leading to Kinlaw Farms within feet

of nearby homes when an alternate route would have impacted neighbors far less. J.A.

2024, 7271–72, 7813–16, 7918. Instead, neighbors suffered from trucks constantly

entering and leaving Kinlaw Farms—the truck delivery schedule, set by Murphy-Brown,

showed eleven deliveries between 12:30 a.m. and 5:30 a.m. during a single morning. J.A.

7273. Again, Murphy-Brown cut corners and its neighbors suffered for it.

At the risk of replaying this theme ad nauseum, it should be observed that these

interlocking dysfunctions were characteristic not just of close confinement but of the

lagoon-and-sprayfield system as well. The negative effects on animals, workers, and

homeowners are here all visible in a single glance. As with any large, uncovered cesspool,

76 it should come as no surprise that “[e]nvironmental and health concerns with the lagoon

technology include emissions of ammonia, odors, pathogens, and water quality

deterioration.” J.A. 6384 (internal citations omitted). The waste in these lagoons almost

“certainly” contained “pathogenic microorganisms and bacteria,” including antibiotic-

resistant bacteria. J.A. 6969. When this waste material is sprayed into the air, everything

around, including nearby homes, is at the mercy of the prevailing winds. J.A. 5242–43.

While the odor potential from spraying untreated hog waste high into the air—where it

then drifts toward nearby homes—is self-evident, Murphy-Brown also knew of odor

complaints from neighbors of hog farms with setups similar to Kinlaw. J.A. 5242–43,

7466–68. Nevertheless, it persisted in requiring the system for Kinlaw.

Even setting dispersion aside, the existence of lagoons maintained like Kinlaw’s

tends to compromise local water quality. Studies have shown that many lagoons leach

waste material into both surface water and groundwater. Dr. Cahoon Brief 15. In surface

water, leakage can produce toxic algae blooms inimical to local wildlife and their habitat.

Id. at 15–16; see also J.A. 5974–76. And waste that enters groundwater creates a health

hazard, particularly for any nearby residents who drink or bathe with well water. Dr.

Cahoon Brief 17–18; see also J.A. 5975. Water quality concerns are especially pressing

here because Kinlaw—like many eastern North Carolina hog facilities—sits in a

floodplain. J.A. 618, 5761–63. Similarly situated lagoons have overflowed during

hurricanes, Dr. Cahoon Brief 18; J.A. 5761, and even under less dramatic weather

conditions, recently sprayed waste material at Kinlaw can easily flow into the nearby Cape

Fear River. See J.A. 624, 5231. Needless to say, deterioration in the local water quality is

77 a grievous blow to both animal and human welfare. Here as elsewhere, these two values

are not orthogonal, but integrally connected.

At the end of all this wreckage lies an uncomfortable truth: these nuisance

conditions were unlikely to have persisted for long—or even to have arisen at all—had the

neighbors of Kinlaw Farms been wealthier or more politically powerful. Indeed, North

Carolina’s ban on building new lagoon-and-sprayfield systems arose after CAFOs

threatened to expand into a General Assembly member’s home district of Moore County,

a popular destination for golfers and tourists. Stuart Leavenworth, Golfers Take on Pork

Producers over Hog-Farm Rules, News & Observer, Feb. 27, 1997 (“When it hits home in

your district, you become more keenly aware of problems that other parts of the state are

having. . . . Travel and tourism are so very important to my district.” (quoting Rep. Richard

Morgan of Moore County)); see also N.C. Sess. Law 1997-458; J.A. 5810–11, 7532. In

1997, residents of Bladen County suffered from a poverty rate almost twice that of Moore

County—by 2018, the poverty rate grew to nearly three times that of Moore County. State

and County Estimates for 1997, U.S. Census Bureau, Small Area Income and Poverty

Estimates Program, https://www.census.gov/data/datasets/1997/demo/saipe/1997-state-

and-county.html; 2018 Poverty and Median Household Income Estimates—Counties,

States, and National, U.S. Census Bureau, Small Area Income and Poverty Estimates

Program (Dec. 2019), https://www.census.gov/data/datasets/2018/demo/saipe/2018-state-

and-county.html. And a substantial proportion of residents near Kinlaw Farms are people

of color. J.A. 5697.

78 It is well-established—almost to the point of judicial notice—that environmental

harms are visited disproportionately upon the dispossessed—here on minority populations

and poor communities. See Brief of the North Carolina Environmental Justice Network

and the Rural Empowerment Association for Community Help as Amici Curiae Supporting

Plaintiff-Appellees 26, McKiver v. Murphy-Brown (No. 19-1019) (noting that “[Industrial

hog operations are] disproportionately concentrated in communities of color” and “that

African Americans, Latinos, and Native Americans are 1.54, 1.39, and 2.18 times

(respectively) more likely than whites to live within three miles of one or more

[operations].”); see also J.A. 2263–64, 8422–23, 8426. But whether a home borders a golf

course or a dirt road, it is a castle for those who reside in it. It is where children play and

grow, friends sit and visit, and a life is built. Many plaintiffs in this suit have tended their

hearths for generations—one family for almost 100 years. J.A. 7796. They are exactly

whom the venerable tort of nuisance ought to protect. Murphy-Brown’s interference with

their quiet enjoyment of their properties was unreasonable. It was willful, and it was

wanton. The record fully supports the jury’s finding that punitive damages were warranted.

Moreover, plaintiffs’ suffering—stemming from Murphy-Brown’s mistreatment of

its hogs—was avoidable. The scale of industrial hog farming is no warrant to ride

roughshod over the property rights of neighbors, the health of workers and community

members, and the lives of the hogs themselves. In fact, not one of the above problems is

insuperable. Many can be mitigated using “[s]imple management and manure handling

controls.” J.A. 5221. For example, facilities could decrease the number of hogs penned in

each shed, id., install covers on lagoons to lessen air and water pollution, J.A. 7896–900,

79 or implement available controls to remove pollutants from the air prior to ventilation, J.A.

5223. Moreover, “[i]f Smithfield paid for more labor, [it] may be able to keep the swine

houses cleaner, which would also keep the hogs cleaner, reduce the dust, and reduce the

odor.” J.A. 5221. This suggestion appears particularly apt for Kinlaw, where a single

employee managed all twelve hog sheds—over 14,000 hogs—largely by himself. Id.

Perhaps due to labor constraints, Kinlaw flushed waste from the gutter beneath the

sheds “around four to six times a day,” while a North Carolina State facility using similar

technology flushes waste “up to 12 times a day.” J.A. 6202. This difference matters,

because when you flush more, “it’s less waste accumulation so, of course, less opportunity

for . . . gases and other things to evolve and to be emitted from the hog facility.” Id.

Beyond these straightforward improvements, more sophisticated solutions abound.

Of note, “Terra Blue” advanced wastewater treatment technology—which was developed

under the AG Agreement, see Maj. Op., ante at 8–9—is known for “pathogen reduction,

odor reduction beyond the property boundaries, and . . . treat[ing] . . . wastewater

constituents to a high quality before that material is disposed of.” J.A. 6985–86. It is

sometimes true that economic development and environmental quality are incompatible.

But it is not always the case, and the notion that we are invariably forced to a binary choice

is a fallacy. Mutual benefit would seem within reach here. Advanced systems may benefit

hogs and farmers by decreasing hog mortality and increasing weight gain “compared to the

traditional lagoon management.” See J.A. 6392. However, Murphy-Brown never diverged

from the lagoon-and-sprayfield system, J.A. 1988, 2005–10, or instructed Kinlaw to

80 implement any available technological improvements, or so much as considered the cost.

J.A. 7628, 7656–65, 7874–80.

All this and more this nuisance lawsuit has laid bare. Courts may take note when

an industry has “unduly lagged in the adoption of new and available devices.” The T.J.

Hooper, 60 F.2d 737, 740 (2d Cir. 1932). While it is obviously not our job to displace

corporate decision-making with our own, improvements in technology may bear relevance

at trial to a company’s remediation efforts and options. As Gregg Schmidt, the president

of Murphy-Brown, wrote in 2013: “We also believe that . . . many of our contract farms

are approaching the age where significant renovations are necessary to ensure that the farm

continues to operate efficiently.” J.A. 5231. These renovations were long overdue at

Kinlaw Farms.

And efficiency is only one piece in the responsible stewardship of this essential

industry. Leaders of such industries can cultivate them in ways that account for their full

impact on all stakeholders. Business Roundtable, Statement on the Purpose of a

Corporation (Aug. 2019). Smithfield itself has put it best:

We believe that financial stability and sustainability go hand in hand. Our sustainability strategies help us improve our company.

We seek to create value for our stakeholders, for our employees, and for our company as a whole. . . . We believe we can create greater value for each of our stakeholders by recognizing the intrinsic interconnections between our business objectives and our sustainability objectives. . . .

We use the term “value creation” broadly and think of it in ways that go beyond just our own company’s value.

81 J.A. 6632. Stakeholders do not just include consumers, suppliers, and employees; they

include neighbors of hog facilities, children who go to school nearby, medical patients who

rely on antibiotics, wildlife and water sports enthusiasts, and many more.

Finally there is Wilbur, the pig who was friends with a spider, a rat, geese, sheep,

cows, and a little girl. Charlotte’s Web reminds us that all life is interconnected. And

while not all pigs will be pardoned like Wilbur, it is fitting that the creatures who give their

very lives for us, receive in return our efforts to make their brief stay on earth less

intolerable. For their sake and for ours. Such is the web of life.

82 AGEE, Circuit Judge, concurring in part and dissenting in part:

Although I concur in the resolution of several issues addressed in the majority

opinion, I disagree that the admission of evidence relating to Murphy-Brown’s corporate

parents posed an improper risk only to the jury’s calculation of punitive damages. In my

view, the admission of this evidence was also patently erroneous as to liability for both

compensatory and punitive damages. The prejudice from this error is so profound that a

full new trial is necessary.

In addition, I disagree with the majority opinion’s affirmance of the district court’s

decisions regarding the admissibility of certain expert witness testimony. Specifically, I

conclude the district court abused its discretion in (1) failing to exercise its Daubert 1

gatekeeping function, which should have led to the limitation of testimony from Plaintiffs’

expert witness Dr. Shane Rogers, and (2) excluding Murphy-Brown’s expert witness Dr.

Pamela Dalton from testifying about the results of olfactometer measurements taken at and

near Kinlaw Farms. These evidentiary errors so affected the entire trial that they too require

remanding for a new trial.

For these reasons, described in greater detail below, I respectfully dissent in part. 2

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 2 I concur in the majority opinion’s conclusions that: (1) Kinlaw Farms was not a necessary and indispensable party in this case, Maj. Op. II.A; (2) the statute of limitations would not bar Plaintiffs’ nuisance claims because this case alleged a “continuing” nuisance, Maj. Op. II.B; and (3) at the time this case was filed, North Carolina law authorized recovery of compensatory damages for loss of use and enjoyment of property, and the 2017 amendment to the Right to Farm Act does not operate retroactively to bar Plaintiffs from recovering such damages as a matter of law, Maj. Op. II.C.

83 I. Legal Background & District Court Proceedings

A. North Carolina Nuisance Law

Before exploring the particulars of the evidentiary errors, a brief discussion of

Plaintiffs’ claim is warranted. Each of the ten plaintiffs asserted a single cause of action—

private nuisance under North Carolina law—against a single defendant, Murphy-Brown,

LLC, d/b/a Smithfield Hog Production Division. Because operating “a lawful enterprise is

not a private nuisance per se,” Plaintiffs asserted that Kinlaw Farms was a private nuisance

per accidens, meaning that they alleged it “bec[a]me [a] nuisance[] by reason of [its]

location, or by reason of the manner in which [it was] constructed, maintained or operated.”

Watts v. Pama Mfg. Co., 124 S.E.2d 809, 813 (N.C. 1962). 3 A plaintiff must prove two

things to hold a defendant liable for creating or maintaining a private nuisance per

accidens: “(1) that the defendant’s use of its property, under the circumstances,

unreasonably invaded or interfered with the plaintiff’s use and enjoyment of the plaintiff’s

property; and (2) because of the unreasonable invasion or interference, the plaintiff suffered

substantial injury.” Elliott v. Muehlbach, 620 S.E.2d 266, 269 (N.C. Ct. App. 2005). The

two elements operate in tandem, as North Carolina courts have summarized a plaintiff’s

prima facie case to require a showing of “the existence of a substantial and unreasonable

interference with the use and enjoyment of [the plaintiff’s] property.” The Shadow Group,

L.L.C. v. Heather Hills Home Owners Ass’n, 579 S.E.2d 285, 287 (N.C. Ct. App. 2003).

3 I have omitted internal quotation marks, alterations, and citations here and throughout the opinion, unless otherwise noted.

84 The “unreasonableness” component of a nuisance per accidens cause of action

recognizes that individuals generally have freedom to use their property as they desire and

some interferences with another person’s use of his property are expected when living in

community. Watts, 124 S.E.2d at 815. This inquiry does not look to “whether a reasonable

person in plaintiffs’ or defendant’s position would regard the invasion as unreasonable, but

whether reasonable persons generally, looking at the whole situation impartially and

objectively, would consider it unreasonable.” Id. at 814. That is why “[w]hat is reasonable

in one locality and in one set of circumstances may be unreasonable in aanother [sic].” Id.

North Carolina courts have identified many circumstances that factfinders can consider

when determining whether an interference is unreasonable, including:

the surroundings and conditions under which defendant’s conduct is maintained, the character of the neighborhood, the nature, utility and social value of defendant’s operation, the nature, utility and social value of plaintiffs’ use and enjoyment which have been invaded, the suitability of the locality for defendant’s operation, the suitability of the locality for the use plaintiffs make of their property, the extent, nature and frequency of the harm to plaintiffs’ interest, priority of occupation as between the parties, and other considerations arising upon the evidence.

Id. “[N]o single factor is decisive, [and] all the circumstances in the particular case must

be considered.” Elliott, 620 S.E.2d at 270.

The “substantial injury” component recognizes that because “[t]he law does not

concern itself with trifles,” recovery is limited to invasions involving “more than slight

inconvenience or petty annoyance.” Watts, 124 S.E.2d at 815. North Carolina courts have

explained that a “substantial interference” means “a substantial annoyance, some material

85 physical discomfort or injury to the plaintiff’s health or property.” The Shadow Group, 579

S.E.2d at 200.

B. The Claim & the Trial

Plaintiffs’ case was built around the allegation that three aspects of Kinlaw Farms’

operations constitute a cognizable nuisance: (1) regular—though not constant—odors

emanating onto their property from hogs and the lagoon-and-sprayfield waste management

system; (2) buzzards and flies that frequented their properties, particularly when hog

carcasses were stored in “dead boxes” awaiting removal from Kinlaw Farms; and (3) trucks

driving on the dirt road that passed close to their residences to access Kinlaw Farms

throughout the day and night to deliver and remove hogs. Plaintiffs each lived between

one-tenth to one-half mile from the hog-confinement buildings, waste lagoons, or

sprayfields on Kinlaw Farms; several of Plaintiffs’ residences abut the unpaved roads used

to access Kinlaw Farms.

Much of the evidence Plaintiffs submitted in support of their case was uncontested

and is not at issue on appeal. Broadly described, their evidence included Plaintiffs’

anecdotal descriptions of all three complained-of circumstances; records about Kinlaw

Farms’ operations, including waste spraying and truck transport schedules; expert

testimony about how the lagoon-and-sprayfield waste management system works and the

long-studied effects of industrial hog operations, including the type of lagoon-and-

sprayfield system used at Kinlaw Farms, on surrounding communities; and testimony about

86 North Carolina’s hog industry generally, including legislative action regulating it from the

1990s to present day. 4

Similarly, much of Murphy-Brown’s evidence was uncontested and is not at issue

on appeal. It consisted of testimony describing (and records documenting) Kinlaw Farms’

compliance with North Carolina laws regulating lagoon-and-sprayfield waste management

systems on hog farms; Smithfield Foods, Inc.’s cooperation in studies regarding odor

reduction following a 2000 agreement with North Carolina’s Attorney General (“2000 AG

Agreement”) 5; Murphy-Brown’s responsiveness to reports of odor problems at other farms

and the absence of any such complaints about Kinlaw Farms; efforts Murphy-Brown had

undertaken to minimize odors associated with hog waste at its farms, including Smithfield

Foods, Inc.’s research and development of hog feed that decreased the volume and odor of

4 Both parties presented extensive evidence about North Carolina’s regulation of the industry. It included newspaper articles and scientific and legislative reports regarding statewide complaints about industrial hog farm odors in the 1990s that led to the legislature’s decision to prohibit new lagoon-and-sprayfield waste storage systems from being created (while old systems were grandfathered in), as well as decades-long lobbying efforts in opposition and support of changes to the industry within the state and at other Murphy-Brown-affiliated farms in the United States. 5 The 2000 AG Agreement was entered into by the North Carolina Attorney General and Smithfield Foods, Inc. and several of its subsidiaries, including Murphy Farms, in which Smithfield Foods, Inc. agreed to participate in and fund research into “environmentally superior” waste management technology, and to subsidize the installation of any technology on its own and contract farms if an independent panel determined the technology was “technically, operationally and economically feasible” to implement. J.A. 7714, 7717. (That same year, Smithfield Foods, Inc. acquired Murphy Farms, which was later merged “with and into” Murphy-Brown. See J.A. 206, 597–98.)

87 hog feces; and anecdotal testimony from other individuals living within a few miles of

Kinlaw Farms who testified they were not bothered by odors or the other alleged nuisances.

As relevant here, Murphy-Brown challenges the evidentiary decisions described

above, which are reviewed for abuse of discretion. “A district court abuses its discretion if

its conclusion is guided by erroneous legal principles or rests upon a clearly erroneous

factual finding.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). A

district court’s evidentiary decision is subject to reversal only if, after considering the full

record, the Court is left with “a definite and firm conviction that the court below committed

a clear error of judgment in the conclusion it reached upon a weighing of the relevant

factors.” Id. Lastly, evidentiary errors are subject to harmless-error review, meaning that

erroneous decisions warrant a new trial only if the error affected a party’s “substantial

rights.” Fed. R. Civ. P. 61. This standard requires that the error “so fatally infect[ed] the

trial” as to violate the trial’s “fundamental fairness.” Ward v. AutoZoners, LLC, 958 F.3d

254, 273 (4th Cir. 2020).

II. Trial Testimony About Murphy-Brown’s Corporate Parents

Murphy-Brown challenges the admission of certain evidence about its corporate

parents, which it contends allowed Plaintiffs to argue that Murphy-Brown should be held

liable based on evidence about its parent corporations, which are not parties in this case.

A. Factual Background and District Court Ruling

Murphy-Brown is the sole defendant in this case. After the case was filed, but before

trial, Murphy-Brown began doing business under the name “Smithfield Hog Production

Division.” This tradename change reflected an ongoing effort to rebrand all Smithfield

88 Foods, Inc. subsidiaries under the “Smithfield” name. Throughout trial, the district court,

counsel for both parties, and witnesses referred to “Murphy-Brown” and “Smithfield”

using this interchangeable shorthand. Depending on context, sometimes “Smithfield”

meant Murphy-Brown; sometimes it meant corporate parent Smithfield Foods, Inc.; and

sometimes it meant the entire chain of corporate entities from Murphy-Brown on up to its

ultimate corporate owner, WH Group Limited (“WH Group”).

But Murphy-Brown is not the same corporate entity as Smithfield Foods, Inc. In

2000, Smithfield Foods, Inc. purchased Murphy Family Farms; it later merged Murphy

Family Farms with its other hog production subsidiaries to operate that aspect of Smithfield

Foods, Inc.’s business under the name “Murphy-Brown.” In 2013, Smithfield Foods, Inc.

became a “wholly-owned subsidiary of Shuanghui International Holdings Limited,” a

China-based company, and a year later Shuanghui changed its name to WH Group. J.A.

8286. 6

Murphy-Brown filed motions in limine seeking to exclude evidence about its own

and its parent companies’ financial condition, executive compensation as well as its

Chinese ownership. The district court denied the motion to exclude evidence of Murphy-

Brown’s financial condition and reserved ruling on the parent companies’ financial

condition until trial. It granted the motion to exclude “references to and evidence of

6 The actual relationship is more complicated, as Murphy-Brown’s sole member is John Morrell & Co., which is a wholly-owned subsidiary of Smithfield Foods, Inc., which is owned by United Global Foods (US), Inc., which is owned by Ipopema 127. In turn, that entity is owned by SFDS Malta Limited, which is owned by Rotary Vortex Limited, which is owned by WH Group.

89 Chinese ownership, exports of pork to China and other Asian nations, and racial issues.”

J.A. 5796. Specifically, it ruled that Plaintiffs could “bring out that the WH Group is a

Chinese corporation,” but that they could not mention communism or government control

of Chinese corporations and could not “emphasize the ownership by the Chinese or any

foreign entity.” J.A. 5724. The district court later agreed to the clarification that Plaintiffs

could elicit testimony that “there is Chinese ownership,” but advised that they could “not

stress that . . . I mean, it’s a fact and the fact that it’s a Chinese ownership is okay, but to

argue that somehow you should punish these people because the grandparent corporation,

whatever, is owned by the Chinese is unacceptable and I will not permit it.” J.A. 5727.

At trial Plaintiffs were permitted to introduce evidence that WH Group was a

Chinese-based company doing business on the Hong Kong stock exchange, a fact they

repeatedly referenced during opening and closing statements. From the outset of the trial,

Plaintiffs characterized this case as a foreign company using cheap production methods in

North Carolina:

In 2013, a Chinese company called Shuanghui purchases Smithfield Murphy-Brown for $7.1 billion dollars. In the largest ever purchase of an American company by the Chinese. 25 percent of the pork in the United States is produced in the country, but owned by a foreign company. Using the cheapest waste disposal method available makes it cheaper to grow hogs in North Carolina than it is in China. 30 percent of Smithfield’s hogs are exported. The waste stays here.

Shuanghui is renamed WH Group and in 2015, Murphy-Brown is renamed Smithfield Hog Production Division. This is part of the one Smithfield initiative instituted by the new foreign owners. It’s a symbol of the fact that this is all one economic enterprise. The Smithfield Hog Production Division creates the hogs that Smithfield turns into the pork so that the foreign owner, WH Group, can make a profit. I’ll refer to this corporate organization through the trial as they refer to themselves,

90 Smithfield. So during the trial when you hear Murphy Farms, Caroll’s, Brown’s of Carolina, Premium Standard Farms, Smithfield Hog Production, Shuanghui, WH Group, those are all part of one economic entity: Smithfield.

In 2016, the Smithfield Hog Production Division sold $2.7 billion dollars worth [sic] of pork.

J.A. 5813–14. Plaintiffs emphasized that under “Smithfield’s” current operations, “all this

profit goes to the owners of Smithfield, that foreign company, WH Group,” but argued that

if “Smithfield” implemented even more odor-reducing technologies to implement on its

North Carolina farms, then

some of that profit would benefit the North Carolina economy by paying for those things. . . . Smithfield can give back to North Carolina by creating jobs and spending money cleaning up their mess and the neighborhoods. A company doesn’t get to cut costs or make profits by ruining the neighbors’ use and enjoyment of their property. It’s Smithfield’s hogs, Smithfield’s hogs’ waste, Smithfield’s profit. Smithfield must pay for the harm.

J.A. 5853.

During trial, Plaintiffs interrogated Murphy-Brown executives about Smithfield

Foods, Inc.’s approximately $1 billion profit annually, WH Group’s nearly $2 billion profit

annually, 7 and the combined $245 million that three Smithfield Foods, Inc. executives and

one Murphy-Brown executive earned from 2010 to 2015. 8 When Plaintiffs began

questioning Murphy-Brown executive Donald Butler about WH Group’s $2 billion profits,

7 Plaintiffs’ reference to the corporate parents’ profits varied, with most references citing “Smithfield’s” $2 billion in profit, attributing to Murphy-Brown all of WH Group’s profits for its worldwide business. 8 Specifically, Plaintiffs were permitted to introduce evidence relating to the compensation paid to Smithfield Foods, Inc.’s President and CEO, Executive Vice President and CFO; the Pork Group’s President and COO; and Murphy-Brown’s President. (Continued) 91 Murphy-Brown objected, but was summarily overruled each time. The next day, Murphy-

Brown raised a more detailed objection, reminding the district court that it had deferred

ruling on the motion in limine to exclude evidence about the corporate parents’ profits, and

that Plaintiffs were supposed to obtain a ruling before questioning witnesses about it, but

had failed to do so. Murphy-Brown pointed out that because of the way Plaintiffs were

“using the word ‘Smithfield’ interchangeably to refer both to Murphy-Brown and to the

parent company, the manner in which [Plaintiffs’ counsel was] doing this [was] very

confusing and misleading to the jury and certainly would have left the impression that it[]

[was] Murphy-Brown that had $2 billion of profits.” J.A. 7808. Further, Murphy-Brown

argued that this information was irrelevant and extremely prejudicial, and it sought a

limiting instruction and a ruling prohibiting further questioning of this kind. The district

court “accept[ed] responsibility” for what had occurred the day before, but indicated that

it would continue to allow this testimony—without any limiting instruction—because “the

evidence that has been presented by [Plaintiffs] on the integrator setup of this company

Consistent with Plaintiffs’ collective reference to the compensation for these four positions throughout trial, Murphy-Brown challenges as prejudicial the admission of the entire $245 million in compensation. But the analysis to determine admissibility of financial compensation for the President of Murphy-Brown differs from the analysis for the admissibility of the financial compensation for the non-party Smithfield Foods, Inc. executives. For current purposes, it’s sufficient to point out that the district court’s decision failed to recognize the meaningful distinctions between parties and non-parties, as well as subsidiary and parent corporations. At any future trial, the analysis must consider these differences in determining admissibility, if any, of such evidence.

92 makes an admission of evidence” about WH Group or Smithfield Foods, Inc. admissible

as evidence about Murphy-Brown “itself.” J.A. 7810–11. 9

Plaintiffs later questioned Murphy-Brown’s president, Gregg Schmidt, about the

combined $245 million compensation paid to four “Smithfield” executives over six years.

In so doing, Plaintiffs elicited testimony that compensation information was “no longer a

matter of public record” because “the foreign ownership of Smithfield” meant that it was

“no longer obligated to make certain . . . Security Exchange Commission filings with the

United States Government.” J.A. 7882. Schmidt acknowledged that “Smithfield” was no

longer “listed on the New York Stock Exchange,” but was “part of a company that[] [was]

listed on the Hong Kong Exchange so it ha[d] different reporting requirements.” J.A. 7882.

During closing statements, Plaintiffs once again used the district court’s rulings to

full effect, referring to the billions of dollars in profit of WH Group and Smithfield Foods,

Inc. on at least six separate occasions and peppering in references to the executive

compensation multiple times as well. E.g., J.A. 9005 (“Smithfield refuses to implement

[odor-reducing technologies] despite profits of $2 billion every year.”); 9009 (“Despite $2

billion in profit every year, Smithfield says it’s too expensive.”); 9011 (“And last year, in

a single year, WH Group made $2 billion in profit. $2 billion in profit. Selling pork.”);

9 The parties described the corporate structure as being “vertically integrated,” meaning not just that each subsidiary is entirely owned by each corporate parent all the way to WH Group, but also that Smithfield Foods, Inc. owns every aspect of its pork- related business from feed to hogs to slaughterhouses to pork processing and sales. As its rebranding indicated, Murphy-Brown is Smithfield Foods, Inc.’s hog production division. Murphy-Brown owns the hogs it places on its own and contract-farmers’ industrial hog farms to be raised and slaughtered. 93 9043 (“It’s all about a $2 billion a year profit not being spent to fix their own mess.”); 9050

(“They willfully choose not to do anything about [this problem]. Not even figure out how

much it would cost, but yet they pay $245 million to four people over four years.); 9051–

52 (“We know how Smithfield values the harm. Smithfield values the harm in their own

dollars. Murphy-Brown revenue, $3 billion every year. WH Group after tax profit, $2

billion every year. Smithfield after tax profit, $1 billion every year. The cost of covering

all North Carolina lagoons, $500 million. The pay for just four Smithfield executive [sic],

from 2010 to 2015, $245 million.”); 9125 (“And finally, the defendant’s ability to pay

punitive damages as evidenced by its revenues or net worth. And that’s why we’re

discussing it. . . . The revenues are $3 billion dollars every year. . . . [W]hether the defendant

profited by the conduct—is $2 billion every year for WH Group, $1 billion dollars every

year for Smithfield.”).

B. Analysis

Murphy-Brown raises two interconnected errors in the district court’s evidentiary

rulings: (1) the admission of evidence about non-party corporate parents’ financial

information to establish a subsidiary’s liability and assess damages; and (2) the admission

of evidence that a Chinese corporation owns Murphy-Brown, which Plaintiffs exploited to

argue this case was against foreign big business in an appeal to xenophobia. Each argument

involves slightly different focal points and is addressed separately, although they rely on

interconnected facets of the record and the law.

94 1. Ignoring Foundational Principles of Corporate Liability to Admit Evidence About the Finances of Murphy-Brown’s Parent Corporations

Plaintiffs were the masters of their complaint and decided to name only one

defendant: Murphy-Brown. This decision means that any judgment obtained would be

against Murphy-Brown alone. As a matter of essential due process, “a person is not subject

to a judgment entered in litigation in which he has not been named as a party or been made

a party by service of process.” Life Techs. Corp. v. Govindaraj, 931 F.3d 259, 264 (4th Cir.

2019). So even assuming Plaintiffs proved their nuisance claims against Murphy-Brown,

that judgment—including any compensatory or punitive damages award—could be levied

against Murphy-Brown alone. Neither WH Group nor Smithfield Foods, Inc. could be held

liable in this case.

Even if Plaintiffs had named any of Murphy-Brown’s corporate parents as a

defendant, their ability to obtain judgment against those defendants would have been

contingent on a separate analysis and determination of whether the evidence permitted

judgment against that defendant either directly or by piercing the corporate veil. Put

another way, before establishing liability, Plaintiffs would have had to first demonstrate to

the court that it was appropriate to disregard corporate formalities and allow one or more

of the parent corporations to be held liable for the conduct of Murphy-Brown. This course

is required by the cardinal rule of corporate law that “a parent corporation (so-called

because of control through ownership of another corporation’s stock) is not liable for the

acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998); accord Watters

v. Wachovia Bank, N.A., 550 U.S. 1, 43 (2007) (Stevens, J., dissenting) (“[T]he primary

95 advantage of maintaining an operating subsidiary as a separate corporation is that it shields

the [parent corporation] from the operating subsidiaries’ liabilities.”); Richardson v. Bank

of America, N.A., 643 S.E.2d 410, 421 (N.C. Ct. App. 2007) (same). In appropriate cases,

an “equally fundamental principle of corporate law” provides “that the corporate veil may

be pierced and the [corporate parent] held liable for the [subsidiary’s] conduct when, inter

alia, the corporate form would otherwise be misused to accomplish certain wrongful

purposes, most notably fraud, on the [corporate parent’s] behalf.” Bestfoods, 524 U.S. at

62. This doctrine has several descriptors, including “piercing the corporate veil,” an “alter

ego” theory, and the “instrumentality” rule. See Strategic Outsourcing, Inc. v. Stacks, 625

S.E.2d 800, 804–05 (N.C. Ct. App. 2006) (describing these concepts and authorizing veil-

piercing “in reverse” to make the corporation liable for its officer’s actions, rather than the

officer being liable for the corporation’s obligations). 10

Regardless of the name ascribed to it, the issue of whether it’s appropriate to hold a

corporate parent responsible for the conduct of its subsidiary arises only when a plaintiff

has named the corporate parent as a defendant in the action and it can be done only after

10 North Carolina describes its “instrumentality rule” as “the basis for disregarding the corporate entity or ‘piercing the corporate veil.’” Glenn v. Wagner, 329 S.E.2d 326, 330 (N.C. 1985). It states: “A corporation which exercises actual control over another, operating the latter as a mere instrumentality or tool, is liable for the torts of the corporation thus controlled. In such instances, the separate identities of parent and subsidiary or affiliated corporations may be disregarded.” Id. Liability may be imposed upon satisfaction of three elements. Several factors demonstrate whether the elements are meant, such as the level of control exercised and whether there’s “[i]nadequate capitalization,” “[n]on- compliance with corporate formalities,” “[c]omplete domination and control of the corporation so that it has no independent identity,” or “[e]xcessive fragmentation of a single enterprise into separate corporations.” Id. at 330–31.

96 the plaintiff satisfies the distinct principles applicable to this basis of liability. Put

differently, while North Carolina “courts will disregard the corporate form or ‘pierce the

corporate veil,’ and extend liability for corporate obligations beyond the confines of a

corporation’s separate entity . . . to achieve equity,” they will do so only after making the

necessary factual findings demonstrating the propriety of doing so. Glenn, 329 S.E.2d at

330–31.

In this case, brought against Murphy-Brown alone, Plaintiffs did not seek to hold

WH Group, Smithfield Foods, Inc., or any other corporate parent liable for Murphy-

Brown’s allegedly tortious conduct. Moreover, the district court made no specific factual

findings supporting the conclusion that Murphy-Brown was the “mere instrumentality or

tool” of its corporate parents, or vice versa. And, indeed, the district court’s judgment does

not violate any of these principles because it holds Murphy-Brown alone liable for the

nuisance and associated damages. It does not purport to be a judgment against WH Group

or Smithfield Foods, Inc.

But the trial record demonstrates that the district court improperly allowed Plaintiffs

to introduce evidence about and argue for Murphy-Brown’s liability based on the conduct

and characteristics of its non-party corporate parents. The above principles of due process

and corporate law do not authorize this sort of implicit veil-piercing between a party

subsidiary and a non-party corporate parent. See Estate of Hurst ex rel. Cherry v.

Moorehead I, LLC, 748 S.E.2d 568, 575 (N.C. Ct. App. 2013) (affirming a judgment

imposing liability on the corporate parent—who was a party to the case—because the facts

supported piercing the corporate veil under the instrumentality rule); accord Broussard v.

97 Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 349 (4th Cir. 1998) (applying North

Carolina law to reverse district court’s ruling that “[d]isregard[ed] the corporate form” to

impose liability on a corporate parent); Continental Indus., Inc. v. Integrated Logistics

Sols., LLC, 211 F.R.D. 442, 444–45 (N.D. Okla. 2002) (denying discovery request about

defendant’s corporate parent because the parent was “not even before the [c]ourt” as a

named defendant, so the issue of whether the non-party corporate parent could be held

liable by piercing the corporate veil was not before the court). The district court’s disregard

for these bedrock principles was error and affected the entire trial because it led to the

admission of irrelevant and highly prejudicial evidence about Murphy-Brown’s corporate

parent as a means to hold Murphy-Brown liable.

Without question, different analyses are involved in the decision about when a

corporate parent can be held liable for the acts of its subsidiary and when evidence about a

corporate parent can be admitted into evidence in a trial involving its subsidiary. But as

described next, these principles necessarily inform a district court’s decisions about

admissibility of evidence related to a corporate parent under Rules 401 and 403 of the

Federal Rules of Evidence. In short, these principles of due process and corporate liability

provide the framework for understanding why—in a trial against the subsidiary alone—

evidence about its parent corporations is usually irrelevant and runs a high likelihood that

its probative value is substantially outweighed by the risk of prejudice. This case presents

a quintessential example of why those Rules are in place.

Murphy-Brown challenges the district court’s rulings allowing the admission of its

corporate parents’ executive compensation and profits, which Plaintiffs used to argue that

98 Murphy-Brown should be held liable for a nuisance and assessed corresponding

compensatory and punitive damages. On this issue, I agree with the majority opinion’s

conclusion that this evidence was inadmissible for the purpose of calculating punitive

damages because it ran an unacceptable risk that the jurors would rely on the corporate

parents’ financial information in assessing an appropriate amount to award Plaintiffs. But

I disagree with the majority opinion’s conclusion that this evidence was admissible for

purposes of determining liability for either compensatory or punitive damages in the first

instance. The wall the majority opinion draws between liability and damages is illusory:

the prejudice permeates the entire case. Plaintiffs specifically argued that this evidence

should be used for both purposes, and its admission allowed the jury to hold Murphy-

Brown liable based on irrelevant and highly prejudicial evidence about its corporate

parents’ financial information. The district court abused its discretion in allowing

admission of this evidence, which was not harmless.

As pertinent here, evidence is admissible under the Federal Rules if it is relevant,

Fed. R. Evid. 401, but the court “may exclude relevant evidence if its probative value is

substantially outweighed by a danger of” “unfair prejudice, confusing the issues, [or]

misleading the jury,” among other things, Fed. R. Evid. 403; Spring/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379, 384 (2008) (recognizing district courts have latitude to balance

the “probative value and prejudice” of all evidence, including the decision to “exclude as

unduly prejudicial some evidence that has already been found to be factually relevant”).

The test for relevant evidence is both straightforward and permissive: “Evidence is relevant

if it has any tendency to make a fact more or less probable than it would be without the

99 evidence; and the fact is of consequence in determining the action.” Fed. R. Evid. 401;

Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 349 (4th Cir. 2014) (“To be admissible,

evidence must be relevant—a low barrier requiring only that evidence be worth

consideration by the jury.”). In addition, “unfair prejudice” is “the possibility that the

evidence will excite the jury to make a decision on the basis of a factor unrelated to the

issues properly before it.” Mullen v. Princess Anne Volunteer Fire. Co., 853 F.2d 1130,

1134 (4th Cir. 1988); see also Morgan v. Foretich, 846 F.2d 941, 945 (4th Cir. 1988)

(describing it as the “genuine risk that the motions of the jury will be excited to irrational

behavior, and that this risk is disproportionate to the probative value of the offered

evidence”). Applying these principles to this case leaves the firm conviction that the district

court erred in allowing the admission and use of the challenged financial information about

Murphy-Brown’s parent corporations to establish Murphy-Brown’s liability.

At the outset, it’s worth reiterating that under the principles of due process and

corporate law discussed above, a non-party corporate parent’s profitability and executive

compensation typically would be irrelevant to determining a subsidiary’s liability. Absent

a properly presented case brought against the corporate parent in which the plaintiff

demonstrates the propriety of piercing the corporate veil (which is not present in this case),

the corporate parent is a stranger to the litigation, cannot be held liable, and is not a

pertinent actor for establishing the subsidiary’s tort liability. See Estate of Hurst ex rel.

Cherry, 748 S.E.2d at 575; Broussard, 155 F.3d at 349. As such, that evidence would not

matter to the jury’s determination of what the subsidiary did and whether to hold it liable.

Likewise, information about a parent corporations’ substantial profitability and executive

100 compensation runs a real risk of unfair prejudice to the subsidiary as well as confusing the

issue of a parent corporation’s conduct and ability to pay with the subsidiary’s own

culpability and ability to pay. E.g., O’Dell v. Hercules, Inc., 904 F.2d 1194, 1208 (8th Cir.

1990) (affirming the district court’s exclusion of evidence about a non-party corporate

parent’s conduct because it would have been unfairly prejudicial to the subsidiary).

Both the district court’s and the majority’s opinions incorrectly conclude that

something about Murphy-Brown’s specific trial arguments made this highly prejudicial

evidence relevant to establishing liability. To the contrary, the record shows that

throughout the trial Plaintiffs repeatedly and intentionally conflated Murphy-Brown and

its corporate parents, treating Murphy-Brown as if it had unfettered control over how

Smithfield Foods, Inc. compensated its executives and how WH Group and Smithfield

Foods, Inc. spent their profits. In truth, nothing in the record suggests that Murphy-Brown

had such authority. Moreover, nothing Murphy-Brown advanced at trial made WH Group

or Smithfield Foods, Inc.’s financial information so probative that its admission was not

substantially outweighed by the risk of unfair prejudice, confusing the issues, and

misleading the jury.

Recognizing that part of the nuisance analysis was a determination that any intrusion

was unreasonable, Murphy-Brown argued that any hog odors emanating from Kinlaw

Farms were reasonable because it operated in accord with its state-imposed obligations. It

advanced this argument in several ways, including contentions that North Carolina law

authorized Kinlaw Farms’ lagoon-and-sprayfield system, that Kinlaw Farms possessed and

complied with all necessary state operating permits, and that the 2000 AG Agreement did

101 not impose any additional unfulfilled obligations on how Kinlaw Farms operated. In

addition, Murphy-Brown argued it had voluntarily implemented additional economically

feasible odor-reducing technologies, and acted reasonably in deciding not to impose the

ones Plaintiffs now advocated as additional actions because those were not economically

viable. Plaintiffs cite—and the majority opinion accepts—the last two arguments as

reasons why Murphy-Brown’s arguments opened the door to admission of its corporate

parents’ financial information. A closer look reveals why the majority opinion errs.

Murphy-Brown invoked the 2000 AG Agreement as proof that its operations did

not unreasonably intrude on Plaintiffs’ properties. This agreement required Smithfield

Foods, Inc. to cooperate with the state’s studies of potential odor-reducing technologies

and to implement any of those technologies that an independent designee determined to be

economically feasible. Part of Smithfield Foods, Inc.’s contractual obligation was to fund

implementation of those technologies on any of the farms it operated or contracted with,

which would include funding them at Kinlaw Farms. So when Plaintiffs argued that

Murphy-Brown should have been using such technologies as super soils or lagoon covers,

Murphy-Brown pointed to Smithfield Foods, Inc.’s obligations under the 2000 AG

Agreement to assert that had those technologies been deemed economically feasible, they

would have been put into effect. Murphy-Brown was correct at least insofar as the

independent designee determined not to require these measures.

Thus, while it is true that Murphy-Brown cited Smithfield Foods, Inc.’s conduct

related to the 2000 AG Agreement as something to be imputed to it for purposes of arguing

it operated Kinlaw Farms in a reasonable manner, it did so because Smithfield Foods, Inc.

102 was the relevant signatory. But Smithfield Foods, Inc. had agreed to be liable only for

implementing any odor-reducing technologies required by the designee. Its obligation to

pay for anything on Kinlaw Farms or anywhere else extended no further. Notably, Plaintiffs

do not contend Murphy-Brown failed to implement any action required by the 2000 AG

Agreement. Further, nothing in the record indicates any additional binding obligations or

commitments on the part of Smithfield Foods, Inc. By relying on Smithfield Foods, Inc.’s

obligation under the 2000 AG Agreement, Murphy-Brown did not open the door to

admission of evidence of all of Smithfield Foods, Inc.’s profits because they are irrelevant

to assessing the obligations under that agreement. 11

Separate from the 2000 AG Agreement, Murphy-Brown also argued that it had

voluntarily implemented economically feasible odor-reducing technologies. And it’s true

that Smithfield Foods, Inc. developed the odor-reducing technologies that Murphy-Brown

pointed to as proof that it (Murphy-Brown) had implemented economically viable

technologies and continued to develop and explore other options. Once again, however, no

evidence showed that Murphy-Brown, the subsidiary, could have required or obligated WH

Group, Smithfield Foods, Inc., or any other entity to devote more of their resources to

developing or implementing additional odor-reducing technologies for use at Kinlaw

Farms. So this argument did not open the door to evidence about the corporate parents’

financial information either.

11 WH Group’s profits are even further removed from the realm of relevant evidence. It was not a party to the 2000 AG Agreement, so it never undertook any obligation at all with respect to Kinlaw Farms. 103 The testimony of Murphy-Brown’s executives does not suggest otherwise. Schmidt

agreed that “Smithfield” would “pay to put technology on contract growers’ operations to

better deal with the waste from Smithfield’s hogs on those operations” if such a technology

was identified and economically viable. J.A. 7880. Plaintiffs’ use of “Smithfield” during

questioning blurs which company—Smithfield Foods, Inc. or Murphy-Brown—would

have paid or was under any obligation to do so. J.A. 7880. (“Q. . . . And Smithfield could

pay for it if Smithfield wanted to pay for it, correct? A. If it was economically viable.”).

Even assuming Schmidt was referring to Smithfield Foods, Inc.’s theoretical ability to pay,

there’s nothing in the record suggesting Schmidt—Murphy-Brown’s president—could

have obligated Smithfield Foods, Inc. to pay for anything or had unrestricted access to the

parent company’s money. Thus, the door to admitting Smithfield Foods, Inc.’s financial

information should have been closed.

The majority opinion also takes Schmidt’s later testimony out of context. During

one exchange, Schmidt agreed that if Murphy-Brown decided to cover the lagoons on

contract farmers’ properties “it could go ask Smithfield or WH Group for the money to do

it” because “[t]hat would be the procedure” and “that would be where [Murphy-Brown

would] get the money.” J.A. 7908. Once again, nothing in this testimony suggests that WH

Group or Smithfield Foods, Inc. would have agreed to incur any costs at Murphy-Brown’s

request; instead, Schmidt’s testimony was purely about the hypothetical procedure

104 Murphy-Brown could have pursued to obtain funding outside its own resources. 12 Neither

this exchange—nor any other trial evidence—shows Schmidt had any authority to bind any

party but Murphy-Brown. By admitting that Murphy-Brown could ask its corporate parents

for money, Schmidt was not testifying that Murphy-Brown could obtain its corporate

parents’ funds for any purpose. Therefore, this testimony does not make any evidence

regarding the corporate parents’ finances relevant.

At bottom, Murphy-Brown’s arguments at trial and the testimony of its executives

focused on the decisions that Murphy-Brown made about why it chose to implement some

new technologies and not implement others. Its arguments did not change whose conduct

was relevant to the jury’s consideration of Murphy-Brown’s decisions. Nor did its

arguments open the door to information about its corporate parents’ profits as evidence of

what more it could have afforded. Thus, contrary to the district court and the majority

opinion’s view, neither the “integrated” nature of Smithfield Foods, Inc.’s corporate

structure nor the specific arguments Murphy-Brown made to defend its decisions made

information about the non-party corporate parents relevant. As such, that evidence was

inadmissible.

Even were Smithfield Foods, Inc.’s financial information somehow marginally

relevant as a result of Murphy-Brown’s arguments, a proper Rule 403 analysis would still

12 The same conclusion can be drawn from Butler’s testimony, who testified that “Smithfield” would not choose to “implement a technology that we know would render farms economically nonviable,” J.A. 7571, and that it based those determinations on North Carolina law and Smithfield Foods, Inc.’s contractual obligations as opposed to considering whether it had money to pursue additional technologies.

105 require exclusion of evidence of $245 million in non-party executive compensation and $2

billion in non-party profit because of the resulting unfair prejudice, confusion of the issues,

and risk of misleading the jury. The record shows that Murphy-Brown often operated at a

loss or was barely profitable despite having significant annual revenues. But the district

court’s ruling effectively allowed Plaintiffs to avoid haling the corporate parents into

federal court as a defendant to this action and proving their liability by association alone.

Under this short-circuited approach, Plaintiffs were permitted to argue that Murphy-

Brown—the sole defendant at issue in this case—actually had $2 billion at its disposal and

had elected to spend $245 million to compensate four executives. Viewed another way,

they argued that WH Group and Smithfield Food, Inc. acted unreasonably by not doing

more on behalf of their subsidiary, Murphy-Brown, despite WH Group and Smithfield

Food, Inc.’s conduct not being at issue in the case because they were not named parties.

The resulting unfair prejudice to Murphy-Brown could not be more readily

apparent. Had the evidence been limited to Murphy-Brown’s financial information, which

was nowhere near these amounts, the jury may well have reached a much different

determination of the financial feasibility of implementing odor-reducing technologies

when it was deciding Murphy-Brown’s liability for a nuisance. Instead, it heard—

repeatedly—that “Smithfield” operated at a $2 to $3 billion profit, leaving the jury with an

entirely skewed idea of whether Murphy-Brown’s decisions unreasonably intruded on

Plaintiffs’ properties. And it was invited to hold Murphy-Brown liable based on the

financial capability of its non-party corporate parents. Where evidence runs such a high

risk of leading the jury to base its verdict on improper grounds, it should be excluded under

106 Rule 403. E.g., Carnell Constr. Corp. v. Danville Redev’t & Hous. Auth., 745 F.3d 703,

719–21 (4th Cir. 2014) (holding that the district court abused its discretion in admitting

evidence of marginal probative value); Utility Control Corp. v. Prince William Constr. Co.,

558 F.2d 716, 721 (4th Cir. 1977) (holding that the district court abused its discretion in

admitting evidence that an employee “once previously executed an express guarantee”

because “its relevancy was so slight” that it was substantially outweighed by the danger

that the jury would think it served as evidence that the employee signed in that capacity in

the contract at issue).

At this point, it scarcely requires any additional discussion of why the improper

admission of evidence about WH Group and Smithfield Foods, Inc.’s financial information

affected Murphy-Brown’s substantial rights during the trial. As noted earlier, Plaintiffs

disregarded basic principles of corporate law by bringing their case against Murphy-Brown

alone and yet arguing that this one subsidiary should be held liable based on evidence

related to the entire “Smithfield” corporate structure. Plaintiffs plainly timed their

questions about Murphy-Brown’s decision not to implement additional odor-reducing

technologies to immediately precede questions about Smithfield Foods, Inc.’s executive

compensation and WH Group and Smithfield Foods, Inc.’s profits. Moreover, they

admitted that “[the] point” of their focus on “Smithfield’s” $2 billion profits was to

demonstrate that Smithfield Foods, Inc. spent only “about a thousandth of one year’s profit”

on researching and developing odor-reducing technologies. J.A. 7610. Plaintiffs repeatedly

referred to a $2 billion profit during opening and closing statements, arguing to the jury

that “[t]echnological solutions have been found. . . . Super soils and covers. Smithfield

107 refuses to implement them despite profits of $2 billion every year. They say it’s too

expensive.” J.A. 9005 (emphases added); see also J.A. 9050 (“They willfully cho[]se not

to do anything about it . . . but yet they pay $245 million to four people over four years.”

(emphases added)). And in reminding the jury of its duty to determine an appropriate

amount of damages arising from a nuisance, Plaintiffs specifically urged the jury to

consider the corporate parents’ executive compensation and profitability:

There is no fixed formula for placing a value on these alleged harms. It’s up to the ten of you to make your decision what is the appropriate value. We know how Smithfield values the harm. Smithfield values the harm in their own dollars. Murphy-Brown revenue, $3 billion every year. WH Group after tax profit, $2 billion every year. Smithfield after tax profit, $1 billion every year. The cost of covering all North Carolina lagoons, $500 million. The pay for just four Smithfield executive [sic], from 2010 to 2015, $245 million.

J.A. 9051–52 (emphases added). The financial information about Murphy-Brown’s

corporate parents was a focal point of Plaintiffs’ argument that Murphy-Brown could have

afforded to do more to reduce odors at Kinlaw Farms and for assessing both compensatory

and punitive damages. Its admission was not harmless because it cannot be said “with fair

assurance, after pondering all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by the error.” Smith v. Balt. City

Police Dep’t, 840 F.3d 193, 201 (4th Cir. 2016); see Macsherry v. Sparrows Point, LLC,

973 F.3d 212, 225–26 (4th Cir. 2020) (vacating and remanding for a new trial where

evidentiary error harmed the defendants—despite other evidence supporting plaintiff’s

claim—because of its likelihood of swaying the jury’s consideration of the evidence and

determination of damages).

108 Unlike the majority opinion, I see no basis in common sense or the law for

concluding that this evidence was not equally prejudicial for both compensatory and

punitive liability purposes. Accordingly, I would hold that the district court abused its

discretion in allowing admission of the corporate parents’ financial information as the basis

for holding Murphy-Brown liable. And because this error affected Murphy-Brown’s

substantial rights and guarantee of a fundamentally fair trial, I would hold that it requires

a new trial on both liability and damages. 13

2. Evidence of Chinese Ownership Led to Improper Xenophobic Appeals

The district court also abused its discretion by allowing Plaintiffs to introduce and

emphasize testimony that a Chinese corporation with $2 billion profits owned Murphy-

Brown. This evidence was largely irrelevant and—as it was used at trial—created an

unacceptable risk that the jury’s verdict would be based on anti-China bias.

13 The error was not limited to the liability stage and, as the majority opinion correctly concludes, the prejudicial nature of this evidence is readily apparent in the jury’s calculation of punitive damages. See Maj. Op. II.G.2. As that opinion recognizes, juries must assess the defendant’s ability to pay and determine what might deter the defendant when calculating a proper amount of punitive damages. See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n.28 (1993) (plurality opinion) (observing the “well-settled” principle that a defendant’s “net worth” is one factor “typically considered in assessing punitive damages”); N.C. Gen. Stat. § 1D-35(2)(i) (allowing consideration of the defendant’s ability to pay “as evidenced by its revenues or net worth” (emphasis added)); Watson v. Dixon, 532 S.E.2d 175, 178 (N.C. 2000) (same). In sum, I agree with this part of the majority opinion’s decision because evidence of the corporate parents’ financial information should not have been part of the determination of punitive damages, but I disagree that the harm only arose in that context because it equally poisoned the determination of liability.

109 In 2013, WH Group became Murphy-Brown’s owner, seven corporate levels

removed. Nothing in the record indicates that WH Group was ever actively involved in any

aspect of North Carolina’s industrial hog farms, let alone in the management of Kinlaw

Farms. More particularly, WH Group’s Chinese identity had no bearing on whether

Murphy-Brown substantially and unreasonably interfered with Plaintiffs’ use and

enjoyment of their property. See supra Part I.A (discussing a plaintiff’s burden in

establishing a per accidens nuisance). Its irrelevance to any issue before the jury meant

that it plainly served only to facilitate Plaintiffs’ arguments to provoke passions against

foreign big business, and incite anti-China sentiment specifically. As such, its admission

was irreparably prejudicial.

To be sure, the district court’s pre-trial ruling ostensibly struck a balance between

allowing admission of the mere fact of Chinese ownership and prohibiting Plaintiffs from

“emphasiz[ing]” or “stress[ing]” that fact at trial. J.A. 5724, 5727. But whatever theoretical

balance had been contemplated was abandoned during opening statements and continued

to be exploited repeatedly throughout the trial. As the earlier factual recitation makes plain,

Plaintiffs immediately set out to tear down any distinction between Murphy-Brown and its

corporate parents, explaining that it would refer to “this corporate organization”—i.e., any

company from Murphy-Brown to WH Group—as “Smithfield.” J.A. 5814. Doing so

simultaneously allowed Plaintiffs to emphasize defendant Murphy-Brown’s foreignness in

arguments that can only be described as encouraging xenophobia amongst the jurors. E.g.,

J.A. 5852–53 (“[A]ll this profit goes to the owners of Smithfield, that foreign company,

WH Group.” (emphasis added)).

110 During opening and closing statements, Plaintiffs characterized the entire case as

one where the profits from North Carolina’s hog farms ended up in China while the hog

waste generated on them was left in-state. J.A. 5814 (“Using the cheapest waste disposal

method available makes it cheaper to grow hogs in North Carolina than it is in China. 30

percent of Smithfield’s hogs are exported. The waste stays here.”); J.A. 9010 (same). They

also highlighted WH Group’s acquisition of Smithfield Foods, Inc. as “the largest ever

purchase of an American company by the Chinese.” J.A. 5813, 9010. Plaintiffs elicited

testimony on WH Group’s purchase of Smithfield Foods, Inc., including WH Group’s

having to go through a congressional process overseeing “proposed foreign acquisitions,”

J.A. 7432, and no longer being required to disclose certain information as a “matter of

public record” because it was listed on the Hong Kong stock exchange rather than the New

York Stock Exchange, J.A. 7882. And Plaintiffs asked Butler about Murphy-Brown’s

profits to confirm that all of Murphy-Brown’s profits flowed solely to “Smithfield,” J.A.

7438, a response they used to argue that all of Murphy-Brown’s endeavors occur so “that

the foreign owner, WH Group, can make a profit” in the neighborhood of $2 billion. J.A.

5814; J.A. 9011 (“The Smithfield Hog Production Division creates the hogs that Smithfield

turns into the profit for the WH Group. And last year, in a single year, WH Group made $2

billion in profit.”).

“The Supreme Court has long made clear that statements that are capable of

inflaming jurors’ racial or ethnic prejudices degrade the administration of justice.” United

States v. Runyon, 707 F.3d 475, 494 (4th Cir. 2013); see also United States v. Blankenship,

382 F.3d 1110, 1127 (11th Cir. 2004). Further, the Supreme Court has cautioned about the

111 prejudice that can arise from the admission of evidence of corporations deemed to be

“other.” E.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003) (noting

that the bias created from evidence about a large corporation’s wealth is particularly acute

when that business lacks a “strong local presence[]”). In fact, many courts have recognized

the prejudice that easily arises from evidence about—and repeated references to—an

entity’s foreignness when compared to the local entities and issues in a case. E.g., Boyle v.

Mannesmann Demag Corp., 991 F.2d 794, *3 (6th Cir. 1993) (unpublished table decision)

(“[R]epeated references to a party’s citizenship or nationality can be unduly prejudicial to

that party. See Gearhart v. Uniden Corp. of Am., 781 F.2d 147 (8th Cir. 1986) (on retrial,

remarks relating to Far Eastern parent corporations should not be permitted because of

xenophobia and because wealth of parent corporations is irrelevant to the issues in the

case).”). Trial courts have been repeatedly cautioned to guard against such bias-baiting

arguments. Although the district court’s pre-trial ruling implicitly acknowledged this very

real risk, it did nothing at trial to enforce its pretrial order or restrain Plaintiffs from

inflaming the passions of the jury against Chinese big business despite Murphy-Brown’s

motion in limine.

By emphasizing that Smithfield was a Chinese corporation, Plaintiffs fostered a

genuine likelihood that the verdict was influenced by anti-China bias. Their arguments and

the admitted evidence speak for themselves, but did not occur in a vacuum. This trial

occurred from April 3 to 26, 2018, at a time when escalating concern and inflammatory

rhetoric concerning this precise matter of Chinese big business and United States–China

economic relations dominated the news, and had done so for some time. Rebecca Tan, The

112 U.S.-China Trade War Has Begun. Here’s How Things Got to This Point, Wash. Post:

Worldviews (July 6, 2018, 10:20 AM),

https://www.washingtonpost.com/news/worldviews/wp/2018/07/05/a-timeline-of-how-

the-u-s-china-trade-war-led-us-to-this-code-red-situation/ (chronicling trade relations

since 2015) (saved as ECF opinion attachment); White House, National Security Strategy

of the United States of America 2 (2017), https://www.whitehouse.gov/wp-

content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf (“China . . . challenge[s]

American power, influence, and interests, attempting to erode American security and

prosperity.”) (saved as ECF opinion attachment). When Donald J. Trump announced his

candidacy for the U.S. presidency, his speech “mentioned China 21 times, arguing that the

country was taking American jobs and ‘ripping’ the U.S. economy.” Tan, supra; see also

Berkley Sanders-Velez, Cold War Rhetoric: China and the US Today, Colum. Pol. Rev.,

Mar. 31, 2018 (quoting then-candidate Trump as saying, “We can’t allow China to rape

our country anymore. . . . We need to stop them from taking our jobs.”). And beginning in

January 2018, the “trade war” was official, with both countries implementing certain

measures targeting the other’s goods while also threatening to implement harsher

measures. See Tan, supra; Jethro Mullen, The US and China Are in Talks to Try to Avoid

a Trade War, CNN: Money (Mar. 26, 2018, 8:06 AM),

https://money.cnn.com/2018/03/26/news/economy/china-us-trade-war-talks/index.html

(saved as ECF opinion attachment). The week this trial began, China responded to the

decision of the United States to introduce new tariffs, increase certain import taxes, and

threaten additional tariffs on Chinese products by proposing its own tariffs on United States

113 exports, including pork. See Tan, supra; David J. Lynch & Emily Rauhala, Trump Pushes

Back on Fears of a Trade War with China, Wash. Post (Apr. 4, 2018 9:32 PM),

https://www.washingtonpost.com/world/asia_pacific/china-fires-back-at-trump-with-

tariffs-on-106-us-products-including-soybeans-cars/2018/04/04/338134f4-37d8-11e8-

b57c-9445cc4dfa5e_story.html (“President Trump showed no sign Wednesday of backing

down from an escalating trade confrontation with China, even as financial markets wobbled

and American farmers and manufacturers warned that he was inviting a damaging

commercial clash.”) (saved as ECF opinion attachment).

Running parallel to these actions, and thus to the trial, President Trump posted many

statements on Twitter critical of United States-China economic relations, such as:

• “We are not in a trade war with China, that war was lost many years ago by the foolish, or incompetent, people who represented the U.S. Now we have a Trade Deficit of $500 Billion a year, with Intellectual Property Theft of another $300 Billion. We cannot let this continue!” Donald Trump (@realDonaldTrump), Twitter, (Apr. 4, 2018, 7:22 AM), https://twitter.com/realDonaldTrump/status/981492087328792577 (saved as ECF opinion attachment).

• “China, which is a great economic power, is considered a Developing Nation within the World Trade Organization. They therefore get tremendous perks and advantages, especially over the U.S. Does anybody think this is fair. We were badly represented. The WTO is unfair to U.S.” Donald Trump (@realDonaldTrump), Twitter, (Apr. 6, 2018, 10:32 AM), https://twitter.com/realDonaldTrump/status/982264844136017921 (saved as ECF opinion attachment).

• “The United States hasn’t had a Trade Surplus with China in 40 years. They must end unfair trade, take down barriers and charge only Reciprocal Tariffs. The U.S. is losing $500 Billion a year, and has been losing Billions of Dollars for decades. Cannot continue!” Donald Trump (@realDonaldTrump), Twitter, (Apr. 7, 2018,

114 2:03 PM), https://twitter.com/realDonaldTrump/status/982680387116781568 (saved as ECF opinion attachment).

• “When a car is sent to the United States from China, there is a Tariff to be paid of 2 1/2 %. When a car is sent to China from the United States, there is a Tariff to be paid of 25%. Does that sound like free or fair trade. No, it sounds like STUPID TRADE – going on for years!” Donald Trump (@realDonaldTrump), Twitter, (Apr. 9, 2018, 6:03 AM), https://twitter.com/realDonaldTrump/status/983284198046826496 (saved as ECF opinion attachment). It is perhaps reflective of these ongoing national tensions that a survey conducted by the

Pew Research Center in April 2017 found that 44% of Americans had a favorable opinion

of China and 47% an unfavorable opinion of China. Richard Wike, Americans’ Views of

China Improve as Economic Concerns Ease, Pew Rsch. Ctr. (Apr. 4, 2017),

https://www.pewresearch.org/global/2017/04/04/americans-views-of-china-improve-as-

economic-concerns-ease/ (saved as ECF opinion attachment). In contrast, a survey released

sixteen months later showed that although the unfavorable opinion remained the same

(47%), six percent fewer Americans (38%) viewed China favorably. Richard Wike & Kat

Devlin, As Trade Tensions Rise, Fewer Americans See China Favorably, Pew Rsch. Cnt.

(Aug. 28, 2018), https://www.pewresearch.org/global/2018/08/28/as-trade-tensions-rise-

fewer-americans-see-china-favorably/ (saved as ECF opinion attachment).

All this to say, Plaintiffs tapped into a leading issue of the nation’s economy (and,

as some viewed it, an issue of national security) at the time. They capitalized on anti-China

sentiment by calling jurors’ attention to evidence concerning Murphy-Brown’s Chinese

corporate parent and stressing that the profits from North Carolina’s hog farm industries

went overseas, while the waste remained in-state. Because the district court allowed the

115 evidence of Chinese ownership to be introduced for this purpose without curtailing

Plaintiffs’ xenophobic rhetoric, the result was to sanction anti-China bias as a basis for a

verdict against Murphy-Brown. This is not harmless error; it is reversible error on its face.

****

The combined effect of admitting the challenged evidence about Murphy-Brown’s

corporate parents, coupled with the unfettered way in which Plaintiffs emphasized this

information in a case brought solely against Murphy-Brown, constituted an abuse of

discretion. It affected the trial as a whole. Therefore, I would vacate the entire judgment

and remand for a new trial on both liability and damages.

III. Expert Witnesses

A. Admission of Dr. Rogers’ Testimony

Murphy-Brown also challenges three aspects of the district court’s decisions

regarding Plaintiffs’ expert witness Dr. Shane Rogers: (1) its failure to hold a hearing or

otherwise exercise its gatekeeping obligation under Daubert, (2) its decision to allow Dr.

Rogers to testify about matters that appear to have been beyond his expertise, and (3) its

decision to allow the admission of unreliable testimony that the presence of pig2bac meant

that hog odor had been present on Plaintiffs’ property. A brief overview of the relevant

record is again in order.

1. Factual Background and District Court Rulings

Before trial, Plaintiffs proposed to have Dr. Rogers testify as an expert witness about

the environmental impact of Kinlaw Farms’ operations. They obtained permission for Dr.

116 Rogers and his associates to take air, manure, and lagoon samples at Kinlaw Farms. Dr.

Rogers’ team also collected physical samples at some of Plaintiffs’ properties.

One aspect of Dr. Rogers’ proposed testimony derived from testing samples taken

from the exteriors of three Plaintiffs’ homes “for the presence of the genetic sequence

known as pig2bac.” J.A. 4104. 14 Dr. Rogers stated that this genetic marker is “unique to

pig feces,” and thus its presence identifies “the presence of pig feces” in an environment.

J.A. 4104–05. In his view, finding pig2bac on the exterior of a residence indicated that hog

feces had been present there, and that the presence of hog feces served as a “physical

representation of odor” given that the chemical properties associated with pig feces were

well-documented to be odorous. J.A. 4110. In short, Dr. Rogers opined that evidence of

pig2bac served as a reliable proxy for evidence of odor. Moreover, he asserted that because

“pig feces has to be in relatively high concentrations to facilitate . . . detection” of pig2bac,

a detectable presence of pig2bac indicated the presence of comparatively higher levels of

pig feces and resulting odor. J.A. 4105. Based on this data, Dr. Rogers opined “within a

reasonable degree of scientific certainty, that [Kinlaw Farms had] the ability to cause and

the effect of causing a substantial interference with Plaintiffs’ use and enjoyment of their

property in the form of significant annoyance and material physical discomfort.” J.A. 4110.

14 Dr. Rogers took samples from Tammy Lloyd’s residence in October 2016; in addition, samples were taken from Joyce McKiver and Delois Lewis’ joint residence in November 2016 and from the McKoy home sometime later. All of the samples contained pig2bac. Samples were not taken from the residences of the remaining Plaintiffs.

117 In other words, Dr. Rogers represented that pig2bac was an objective measure of the

presence of hog odor on Plaintiffs’ property.

Murphy-Brown moved to exclude Dr. Rogers’ testimony from trial, arguing that he

lacked the qualifications to be certified as an odor expert, that he had used flawed methods

to collect field samples, and that he lacked the scientific foundation needed to offer his

opinion about the existence of a nuisance because of his reliance on the unreliable and

unproven proposition that pig2bac could serve as a proxy for hog odor. In support of its

motion, Murphy-Brown offered a 66-page declaration from its microbiology expert, Dr.

Jennifer Clancy, in which she identified flaws in Dr. Rogers’ sample collection protocols

and questioned the validity of his use of pig2bac as a proxy for hog odor. Murphy-Brown

requested a hearing to address whether Dr. Rogers was Daubert qualified.

The district court denied the motion without a hearing, observing that it “simply

[could not] honor” a request for oral argument on the motion and that it had reviewed the

parties’ written submissions related to the motion. J.A. 6183. Reiterating that it had “read

all [the] materials that [had] been submitted with regard to this issue” that morning, it found

Dr. Rogers to be “an expert in environmental engineering, . . . animal waste management

engineering and technology[,] and microbiology.” J.A. 6185. The sum total of its

explanation for its decision was:

that in carrying out its Daubert responsibilities, that [Dr. Rogers’] proposed testimony is both reliable and relevant and that the objections and questions regarding his testimony go to the weight and may be covered on cross- examination except insofar as defendant contends that some questions are being – that he may be asked questions outside of the field of his expertise, and the Court obviously is confronted with that question with every expert witness and there will be questions that will be posed to the witness that

118 defendant will contend do not fit the area of expertise which the Court has found him to be in.

J.A. 6185–86.

Benefiting from this ruling, Plaintiffs called Dr. Rogers “to talk about odor from

industrial hog operations.” J.A. 6194. While his testimony covered a host of topics, of

particular relevance to this appeal, Dr. Rogers testified that what humans perceive as “hog

odor” is actually “a very large mixture, very complex mixture of chemicals that are in [hog]

waste treatment systems. So several hundred volatile organic compounds – hydrogen

sulfide gas, ammonia gas, for example – and the particles that might carry them.” J.A.

6194. He described the relationship between his expertise and hog odor as knowing “how

those [chemicals] are generated from waste management systems . . . and also how those

types of particles and gases might move in the environment” until a person “experience[d]

them.” J.A. 6194.

In Dr. Rogers’ view, testing for hog odor directly is a subjective and unreliable

assessment for two reasons. First, humans experience odor differently and therefore

measure and perceive it differently. For this reason, he asserted that self-reports and even

measurements taken from an olfactometer were too subjective because they required

someone to “smell something and then they make a call on it.” J.A. 7204. Second, he

opined that testing for the presence of a particular chemical to confirm the presence of hog

odor ran its own risks given that hog odor is a complex chemical compound and no one

representative chemical could be tested so as to reliably confirm the presence of hog odor.

He explained that “any one of [the chemicals comprising hog odor] is extremely smelly”

119 and if one or more are removed, “it’s not likely to change the odor.” J.A. 6206.

Consequently, chemicals known to be sometimes present in hog odor may not be present

on a particular occasion despite the presence of something identifiable as hog odor.

Given these perceived problems with measuring hog odor directly, Dr. Rogers

instead elected to rely on the presence of the DNA sequence pig2bac as a means of

objectively—but indirectly—testing for the presence of hog odor. Consistent with the view

set out in his expert report, Dr. Rogers explained his basis for using pig2bac as a proxy for

odor, the results of his investigation of Plaintiffs’ properties outlined earlier, and his

opinion that Kinlaw Farms was operating as a nuisance under North Carolina law. When

asked to provide “the one thing” he wanted the jurors to take away from his testimony, he

replied that he “brought [them] physical evidence that shows that the feces from this

operation is moving out into the neighborhood and is impacting – it is a physical marker

that shows this operation is impacting the neighbors.” J.A. 7246–47.

Of course, Dr. Rogers did not testify without resistance from Murphy-Brown. He

was subject to extensive cross-examination that delved into the novelty of his using pig2bac

as a proxy for odor. He was also questioned about his decision not to test for certain odorous

chemicals in the air despite the ability to do so, about the lack of data documenting the

presence and quantity of pig2bac at each plaintiff’s residence, and about the lack of data

concerning pig2bac’s general prevalence in the region considering the number of hog farms

in eastern North Carolina. In addition, Murphy-Brown called its counter-expert, Dr.

Clancy, to testify about some of the flaws she’d identified in Dr. Rogers’ collection

protocols, which she said may have led to contaminated results.

120 Murphy-Brown again challenged the admission of Dr. Rogers’ testimony in its

motion for a new trial, and the district court summarily denied the motion.

2. Analysis

On appeal, Murphy-Brown reiterates its challenges to the admission of Dr. Rogers’

expert testimony, arguing that (1) the district court abandoned its Daubert gatekeeping

function by failing to ensure that Dr. Rogers’ testimony about pig2bac was reliable and

relevant, (2) the district court improperly admitted him as an expert to opine on how Kinlaw

Farms was an odor nuisance when his background did not qualify him as an odor expert,

and (3) the district court abused its discretion in allowing Dr. Rogers to testify about the

results of his pig2bac testing because this novel theory failed to satisfy Daubert and Rule

702’s reliability standards. Each of these challenges has merit, and the district court erred

in ruling otherwise, just as the majority opinion errs in affirming those decisions.

Daubert and Federal Rule of Evidence 702 govern the admissibility of scientific

evidence through an expert witness. In short, individuals qualified “by knowledge, skill,

expertise, training, or education may testify in the form of an opinion or otherwise if” their

opinion is based on “specialized knowledge [that] will help the trier of fact to understand

the evidence or determine a fact in issue” and “sufficient facts or data,” “the testimony is

the product of reliable principles and methods,” and “the expert has reliably applied the

principles and methods to the facts of the case.” Fed. R. Evid. 702. “Implicit in the text of

Rule 702 . . . is a district court’s gatekeeping responsibility to ‘ensur[e] that an expert’s

testimony both rests on a reliable foundation and is relevant to the task at hand.’” Nease v.

Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (quoting Daubert, 509 U.S. at 597

121 (emphases added)). Reliability focuses on the expert’s knowledge and methodology, while

relevance looks to whether the evidence “helps the trier of fact to understand the evidence

or to determine a fact in issue.” Id. A court that abandons its gatekeeping function

necessarily abuses its discretion in allowing the expert to testify. Id. at 228; see Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (observing that when an expert’s

“testimony’s factual basis, data, principles, methods, or their application are called

sufficiently into question, . . . the trial judge must determine whether the testimony has a

reliable basis in the knowledge and experience of the relevant discipline”).

a. Abdication of the Gatekeeping Function

The record reveals the district court’s abdication of its responsibility under Daubert

to serve as a gatekeeper before allowing Dr. Rogers to testify about the results of his

pig2bac testing. Even a cursory review of the record demonstrates that the court abandoned

this required function. After a passing reference to “its Daubert responsibilities,” the court

summarily concluded without analysis or explanation that Dr. Rogers’ “proposed

testimony is both reliable and relevant and that the objections and questions regarding his

testimony go to the weight and may be covered on cross-examination[.]” J.A. 6185. It

rejected Murphy-Brown’s multiple challenges as going to weight, not admissibility,

without providing any reason and it failed to mention a single aspect of the proposed

testimony that supported its conclusion.

Faced with a similarly broad and generic admissibility ruling in Nease, we held that

the court had abandoned its gatekeeping function, and the majority opinion offers no

justification for reaching a different result in this case. Specifically, in Nease, the district

122 court’s ruling “simply dismissed every argument raised by [the defendant] as going to the

weight, not admissibility, of [the expert’s] testimony.” 848 F.3d at 230. So too here.

Further, in Nease the district “court did not use Daubert’s guideposts or any other factors

to assess the reliability of [the expert’s] testimony, and the court did not make any

reliability findings.” Id. Here, the record is equally undeveloped, addressing none of the

guideposts or other considerations and making no factual findings. Lastly, in Nease “the

district court referred neither to Rule 702 nor to Daubert.” Id. On this front, the record here

differs just slightly: the district court gave lip service to “its Daubert responsibilities,” but

failed to provide any description of what those responsibilities entailed or any analysis

applying them. J.A. 6185. The Nease ruling and those here are substantively similar and

equally flawed. In both, the district court abandoned its gatekeeping function of “mak[ing]

certain that an expert . . . employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at

152.

The district court’s failure to exercise its gatekeeping function was not cured by

Murphy-Brown’s robust cross-examination and introduction of a counter-expert witness’s

testimony. As this Court recognized in Nease, cross-examination does not serve as a

substitute for the district court’s failure to make the threshold gatekeeping decision as to

the reliability and relevance of expert testimony. 848 F.3d at 231. Similarly, Murphy-

Brown’s counter-expert, Dr. Clancy, challenged Dr. Rogers’ protocols for collecting

samples, raising concerns about his testing methods that should have been addressed in

determining whether to admit his testimony about the results of his testing before it could

123 be heard by the jury. In sum, the whole point of Daubert’s gatekeeping function is “to

protect juries from being swayed by dubious scientific testimony” in the first instance, and

that purpose is not served by admitting the untested evidence and relying on the jury to

determine its reliability. Id. at 231. To do so is to ignore Daubert, which demands that

district courts undertake their gatekeeping function role before expert testimony reaches

the jurors’ ears. Id.

b. Disconnect Between the Scope of Dr. Rogers’ Testimony and His Expertise

The second problem with Dr. Rogers’ testimony occurred because the district court

allowed him to testify about a wide range of topics that appear to be outside his expertise

without adequately inquiring into his qualifications to do so. Part of the court’s gatekeeping

function is to ensure that an expert witness is qualified to testify about each component of

his testimony. Cf. Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir. 2012) (“In

undertaking its role as gatekeeper to ensure that proffered evidence is reliable pursuant to

Fed. R. Evid. 702, the district court must decide whether the expert has sufficient

specialized knowledge to assist the jurors in deciding the particular issues in the case.”).

At Plaintiffs’ request, the district court designated Dr. Rogers as an expert in the

fields of environmental engineering, animal waste management engineering and

technology, and microbiology. But the court then allowed Dr. Rogers to testify extensively

about odors and how humans perceive odors without any factual findings that his fields of

expertise qualified him to testify about this broader topic. Instead, the jurors were asked to

follow and accept Dr. Rogers’ explanation about why his particular training qualified him

to opine about hog odor. Plaintiffs respond to Murphy-Brown’s challenges to Dr. Rogers’

124 expertise by focusing on the fact that he was not designated as an expert on odor; the

majority opinion follows suit, pointing out that Dr. Rogers never purported to be an expert

on how humans perceive odor. But these are red herrings, distracting from the substance

of Dr. Rogers’ testimony, because he in fact opined at length on these very matters.

Dr. Rogers testified about how an industrial hog farm such as Kinlaw Farms

generates odors, why testing for pig2bac on Plaintiffs’ residences “proves” that odors also

traveled to their properties, and what led to his opinion Kinlaw Farms substantially

interfered with the enjoyment of their property. All these representations—and more—

necessarily entailed testimony about odors and human perception of hog odors. For

example, at the outset of Dr. Rogers’ substantive testimony, Plaintiffs’ counsel quickly

transitioned to the observation that “[w]e’re here obviously with the members of the jury

to talk about odor from industrial hog operations.” J.A. 6194. Counsel then asked Dr.

Rogers a series of questions about how his training and background were relevant to the

issue of hog odor’s effect on the environment. He did so by explaining the “way we”—

obviously, humans—“perceive a very large mixture, very complex mixture of chemicals”

such as “hog odor.” J.A. 6194 (emphases added). Throughout his testimony, Dr. Rogers

described the primary sources of odor on a hog farm, and how their design affects odor. He

discussed what “particles and gases [in hog operations] have to do with odor” and

explained that when “we perceive [something] as odor or whatever, what we’re doing is

sensing these different chemicals.” J.A. 6195. And he summarized various studies on why

people perceive hog odors with greater “intensity and offensiveness . . . after rainfall or

when humidity increases.” J.A. 6917. It’s no surprise, then, that Dr. Rogers agreed that his

125 background made him “an expert” in “whether and how industrial hog odor gets to the

neighbors,” which was the issue the jurors would be asked to decide “at the end of the

case.” J.A. 6195.

Dr. Rogers also testified at length about how hog odor is generated at Kinlaw Farms

specifically, basing that testimony on both his knowledge of how industrial hog farms work

generally and his site inspection. He labeled particles ventilated from the Kinlaw buildings

where the hogs live as “very odiferous” and described at some length for the jury “what’s

entering [someone’s] nose” when she “smell[s] hog odor” emanating from those buildings.

J.A. 6914. He later provided similar descriptions of how odors transported from the lagoons

during storage and decomposition of waste as well as from the spraying of waste onto

Kinlaw Farms’ fields. He described “odor tests” he and his team performed on samples

from the lagoons to “determine how many dilutions it takes of the material before it no

longer has an odor to it,” testifying that it “can take between 800 and even up to nearly

16,000 dilutions before the odors are no longer noticeable” to humans. J.A. 6944, 6957;

see also 6954–57. Throughout his testimony, he reiterated that he had experienced the

odors he spoke of while at Kinlaw Farms and on Plaintiffs’ property. And he ultimately

opined that Kinlaw Farms was “not a good location for this type of a hog operation,”

providing additional testimony about various odor-reducing technologies that could be

implemented at Kinlaw Farms. J.A. 6985–95.

At bottom, notwithstanding Dr. Rogers’ formal designation as an expert in other

fields, Plaintiffs presented him to the jury as an expert in odor and human perception of

odor, and thus qualified to offer expert opinions on when hog odors create a nuisance. Any

126 assertion to the contrary ignores the substance of his testimony. At a minimum, the district

court failed to adequately consider and explain why Dr. Rogers’ background and

qualifications were sufficient to permit him to speak about all the aspects of odors touched

on in his testimony. And if he was not qualified to testify about these matters, it erred in

allowing him to do so. See Fed. R. Evid. 702 (requiring expert’s testimony to be qualified

based on “knowledge, skill, experience, training, or education”); Thomas J. Kline, Inc. v.

Lorillard, Inc., 878 F.2d 791, 799 (4th Cir. 1989) (observing that although “the test for

exclusion is a strict one,” an expert lacking the requisite qualifications should be excluded).

Allowing an expert witness to testify outside the areas in which he is qualified leads to the

admission of testimony that has the potential to be “both powerful and quite misleading”

when it should never have been presented to the jury. Daubert, 509 U.S. at 595.

Perhaps Dr. Rogers could have adequately assured the district court of his

qualifications to opine on the spectrum of odor-related issues he testified about, but the

connection to his qualifications and areas of expertise is not readily apparent in this record.

With that in mind, it’s also possible that the discrepancy between Dr. Rogers’ designation

and his testimony may not have been sufficient on its own to prejudice Murphy-Brown to

such an extent so as to require reversal. But it compounds the district court’s other

gatekeeping errs, detailed earlier. The combined effect is error “so fatally infect[ing] the

trial” that it violated Murphy-Brown’s substantial rights. Ward, 958 F.3d at 273.

c. Unreliability of Dr. Rogers’ Pig2bac Testimony

Lastly, the district court’s abdication of its gatekeeping function matters because it

led to the improper admission of Dr. Rogers’ unreliable testimony that physical evidence

127 of pig2bac was physical evidence that odors from Kinlaw Farms were traveling to

Plaintiffs’ properties. 15 See Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir.

2017) (“In fulfilling its gatekeeping function, a district court must conduct a preliminary

assessment to determine whether the methodology underlying the expert witness’

testimony is valid.”). As such, Dr. Rogers’ testimony did not satisfy Daubert or Rule 702,

and the court abused its discretion in allowing its admission.

In considering the reliability of proposed expert witness testimony, district courts

may consider several “guideposts” as well as any other relevant factor. Daubert, 509 U.S.

at 593; Nease, 848 F.3d at 229. The guideposts are, first, “whether [a theory or technique]

can be (and has been) tested.” Daubert, 509 U.S. at 593. Second, “whether the theory or

technique has been subjected to peer review and publication.” Id. Third, “the known or

potential rate of error,” as well as “the existence and maintenance of standards controlling

the technique’s operation.” Id. at 594. Fourth, whether the theory or technique is generally

accepted because “[w]idespread acceptance” hues in favor of admissibility, while “a

known technique which has been able to attract only minimal support with the community

may properly be viewed with skepticism.” Id. At its core, Daubert’s guideposts are

designed to ensure that expert opinion is admitted only when it is reliable, i.e., that it is

“based on scientific, technical, or other specialized knowledge and not on belief or

15 Murphy-Brown does not challenge the admissibility of other aspects of Dr. Rogers’ testimony.

128 speculation, and inferences must be derived using scientific or other valid methods.”

Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999).

A foundational concern about Dr. Rogers’ pig2bac testimony is the novelty of its

use as a proxy for odor, which was the basis of his testing and for much of his testimony.

For example, Dr. Rogers admitted that he was unaware of anyone who used pig2bac as a

surrogate for odor in the way he had done for purposes of forming his opinion in this case.

J.A. 7221 (Q: “No one ever reports Pig2bac used the way you use it, do they?” A: “Not

that I’m aware.”). Further, he admitted that the pig2bac proxy theory and the methodology

for detecting “odor” that he used in this case had never been published (by him or anyone

else). J.A. 7222. And he acknowledged that no one had suggested in “the peer-reviewed

literature” that his approach was “an appropriate scientific method . . . to measure odor

leaving the farm.” J.A. 7222. While it is not clear from the record that he developed his

method strictly for purposes of this litigation, it is indisputably new—and unique to Dr.

Rogers—and does not have any credence in the broader scientific community. See United

States v. Crisp, 324 F.3d 261, 268 (4th Cir. 2003) (observing that although Daubert

“enabled the courts to entertain new and less conventional forms of expertise” than the

prior “uncompromising general acceptance test,” it nonetheless “attempted to ensure that

courts screen out junk science”); see also Daubert v. Merrell Dow Pharms., Inc., 43 F.3d

1311, 1317 (9th Cir. 1995) (observing that a “significant fact to be considered” as part of

the Daubert analysis is whether an expert is testifying “about matters growing naturally

and directly out of research they have conducted independent of the litigation, or whether

they have developed their opinions expressly for purposes of testifying”). Although the

129 novelty of a methodology and theory is not dispositive to the Daubert analysis, it is relevant

and prompts giving additional attention to whether other indicia of reliability exist. See

Daubert, 509 U.S. at 594; Daubert, 43 F.3d at 1317–18 (observing that “other objective,

verifiable evidence that the testimony is based on scientifically valid principles” that have

“been subjected to normal scientific scrutiny through peer review and publication” is a

means of demonstrating reliability despite novelty of a theory).

Working from this blank slate, Dr. Rogers developed what appears to be an

unsupported and untested hypothesis and opinion that the existence of pig2bac serves as

physical evidence of hog odor also having been present at that location such that Kinlaw

Farms “is impacting” the Plaintiffs. J.A. 7247. At bottom, his underlying hypothesis

satisfies neither Daubert nor Rule 702 because it lacks reliability. Dr. Rogers’ hypothesis

was not based on the belief that pig2bac, by itself, was odorous. Instead, he testified that

pig2bac was “associated with odor” because it’s a “segment of DNA that’s in fecal bacteria

aldolase so that’s bacteria aldolase that come[s] out of feces of the hog and it’s a particle

that is in feces of a hog. So that Pig2bac DNA is a very good indicator of the odor that

comes along with that feces of the hog.” J.A. 7200 (emphasis added); see also J.A. 6981

(describing the 100 percent correlation between pig2bac and pig feces). At its core, Dr.

Rogers’ testimony about pig2bac requires the assumption that detecting pig2bac is a valid

surrogate, or proxy, for detecting hog odor. 16

16 Dr. Rogers was contradictory in his testimony about whether pig2bac had any independent odor, at first stating it “probably” did not smell, and then reversing course that because pig2bac is found in bacteria located in pig feces, and because “[o]ften when I’m (Continued) 130 But Dr. Rogers had not performed—and was unaware of any other—tests

demonstrating that pig2bac and hog odor actually traveled together. Although he described

how “[g]ases, fecal particles and other things” formed and transported from the farm onto

neighboring properties, J.A. 6914, he never explained a basis for believing that pig2bac

and odor traveled so coterminously that the presence of pig2bac always served as physical

evidence of hog odor. In fact, he had never tested whether pig2bac and hog odor were ever

present at the same time, let alone run such testing on Plaintiffs’ properties. Further, Dr.

Rogers acknowledged that he had not tested whether pig2bac was present at the same time

as any chemical typically associated with hog odor, let alone tested for some combination

of the complex chemical compound that would be described as “hog odor.” 17 Nor could he

testify to how much pig2bac was present, or what correlation—if any—existed between a

certain amount of pig2bac and a certain amount or concentration of hog odor. And, of

course, because his testing was limited to the presence or absence of pig2bac, he could not

testify to the amount of pig2bac present on the properties or provide any correlation

between its presence and any particular level of odor that would assist the jury in

determining whether it rose to the level of a nuisance. All in all, the association at the core

growing bacteria I can smell them,” pig2bac would have the same odor, although he “couldn’t say” what it would smell like or if that smell resembled hog odor. J.A. 7199. Regardless, his testimony centered on this proxy hypothesis. 17 Dr. Rogers’ testimony that he smelled a strong hog odor while collecting the sample from Tammy Lloyd’s house was anecdotal lay testimony rather than scientific evidence demonstrating the reliability of his core hypothesis about pig2bac for Daubert purposes.

131 of Dr. Rogers’ hypothesis was—at least to date and for purposes of this trial—based on

pure conjecture rather than scientifically reliable evidence of an odor nuisance.

Other aspects of Dr. Rogers’ pig2bac testimony highlight its speculative nature: Dr.

Rogers could not be sure that the pig2bac he recovered originated at Kinlaw Farms or was

simply the result of its prevalence throughout the region given the number of hog farms in

eastern North Carolina. He admitted he’d done no comparative testing of nearby areas such

as Elizabethtown to determine whether pig2bac was commonly detected in field samples.

Also, Dr. Rogers was unable to provide data about how far pig2bac could travel, instead

offering his “susp[icion]” that it could travel at least half-a-mile and could not travel ten

miles. J.A. 7189–90. He was similarly uncertain about how long pig2bac could persist in

an environment, noting that he’d tested its presence in soil samples “on the order of days”

and that it was his “opinion” that it could last “in the air or on a building or on a car” “on

the order of weeks.” J.A. 7190–91.

Without any scientific evidence to reliably establish a connection between the

presence of pig2bac and the presence of hog odor and without any broader acceptance of

this hypothesis in the scientific community, the only proffer for the reliability of Dr.

Rogers’ method for detecting odors on Plaintiffs’ properties was his own ipse dixit. That’s

neither expert testimony nor a sufficient basis for admissibility. Gen. Elec. Co. v. Joiner,

522 U.S. 136, 146 (1997) (observing that courts should not admit an expert opinion

supported only by “the ipse dixit of the expert”); Small v. WellDyne, Inc., 927 F.3d 169,

177 (4th Cir. 2019) (“Without testing, supporting literature in the pertinent field, peer

reviewed publications or some basis to assess the level of reliability, expert opinion

132 testimony can easily, but improperly, devolve into nothing more than proclaiming an

opinion is true ‘because I say so.’”).

While strength as to one of the Daubert factors may overcome a deficiency as to

another, the totality in this instance leads to the conclusion that Dr. Rogers’ pig2bac

testimony lacks the requisite indicia of reliability to be admissible as opposed to simply

being subject to cross-examination to test its weight. The admission of Dr. Rogers’

testimony introduced speculation under the guise of science and expertise. That error

strikes at the core of what Daubert and Rule 702 are designed to avoid given that “expert

witnesses have the potential to be both powerful and quite misleading.” Westberry, 178

F.3d at 261. Based on how it was described and defended in the record, this evidence

should never have reached the jury’s ears. For these reasons, the district court abused its

discretion in admitting Dr. Rogers’ testimony about pig2bac. 18

For the reasons stated, the district court abused its discretion with respect to Dr.

Rogers’ testimony in three respects. First, it abandoned its gatekeeping duty by offering a

cursory and rote explanation of its admissibility decision, in violation of the inquiry

required by Daubert and Nease. Second, it failed to ensure that Dr. Rogers’ expertise and

testimony adequately aligned. Third, it admitted Dr. Rogers’ expert testimony on pig2bac

18 Because I reach this conclusion, it is not necessary to consider whether the district court was required to hold a hearing before ruling on Murphy-Brown’s motion in limine. At a minimum, these concerns demonstrate why the district court abused its discretion in not engaging in a more probing review of Dr. Rogers’ pig2bac testimony, regardless of the method the district court should have undertaken to perform that review.

133 when that testimony falls well short of Daubert’s guidance for ensuring that expert

testimony is reliable. The admission of Dr. Rogers’ testimony clearly harmed Murphy-

Brown given that it was the only purportedly “scientific” on-site testing admitted to support

Plaintiffs’ case, making it impossible to say that it did not affect the jury’s liability finding.

As such, it meets the criteria for reversal, leaving not only the “definite and firm

conviction” of a wrong evidentiary ruling, Westberry, 178 F.3d at 261, but also the

conclusion that it affected Murphy-Brown’s right to a fundamentally fair trial, Ward, 958

F.3d at 273–74.

B. Improper Exclusion of Dr. Dalton’s Olfactometer Readings Evidence

Murphy-Brown sought to introduce expert testimony from Dr. Pamela Dalton, but

the district court restricted that testimony so that Murphy-Brown elected not to call her as

a witness at trial. On appeal, Murphy-Brown challenges the court’s ruling limiting Dr.

Dalton’s testimony, arguing that it abused its discretion by excluding evidence of an

objective measure of odor, which the jury should have been permitted to consider.

Dr. Dalton 19 and her associates tested the frequency, intensity, and duration of

odors in the air at and near Kinlaw Farms. Her approach was based on her “opinion that in

19 Dr. Dalton has a M.S. and Ph.D in Experimental Psychology from New York University and a Master of Public Health from Drexel University. For over two decades, she has conducted olfactory research at the Monell Chemical Senses Center in Pennsylvania. Her research has focused on a range of odor-related topics, including “the human perception of odor, irritation and acute health symptoms from odorous chemical exposures, especially as this perception is influenced by cognitive factors.” J.A. 4713.

134 order to establish whether odors from a facility occur at a nuisance level it is necessary to

independently monitor the frequency, intensity and duration of odors that have the potential

to be perceived offsite or at Plaintiffs’ homes over an extended period of time.” J.A. 4720.

In her view, this was required because an “often unconscious bias in how people respond

to the expectation of an odor,” which causes “self-report[s] [to] generally [be] unreliable.”

J.A. 4720.

Dr. Dalton collected data on two sites at Kinlaw Farms over a four-week period and

at one site off the farm over a one-week period in late 2016. Her study entailed recruiting

six monitors who met her criteria for odor detections, were trained on topics relevant to

odor observation techniques and field procedures, and were provided practice using a field

olfactometer 20 known as the Nasal Ranger™. 21 “To familiarize them with the relevant

odors, monitors were taken to various locations at [Kinlaw Farms] to experience the quality

of odor emanating from the barns and the lagoons.” J.A. 4714.

During the testing period, “[m]onitors worked in two or five hour shifts,” during

which time their activities and preparations were regulated to avoid contaminating results

by the introduction of other scents. J.A. 4714. Working in pairs, monitors took readings

“every 15 minutes from dawn until dusk for the duration of the study.” J.A. 4715. When

the monitors disagreed, the higher intensity level was recorded.

20 An olfactometer is an instrument that detects and measures odor dilution. 21 Dr. Dalton described the Nasal Ranger™ as “the ‘gold standard’ for conducting field olfactometry assessments in studies such as” hers. J.A. 4714.

135 The Nasal Ranger™ “allows ambient air to be sniffed at varying dilutions with clean

air in order to quantify the intensity of any odor.” J.A. 4715. Dr. Dalton explained in her

expert report that “[i]n states where odor regulations exist based on the use of a Nasal

Ranger™ or similar device, the threshold for flagging objectionable odor (along with other

temporal requirements) has been commonly determined to be 7:1 or above.” J.A. 4715.

She cited “general[] agree[ment]” that a lower dilution ratio would not constitute an

“objectionable odor.” J.A. 4715.

Dr. Dalton reported that in the testing on Kinlaw Farms property, monitors detected

a dilution level of 7:1 or greater a total of sixty-five times over the course of the four weeks,

and detected a dilution level of 7:1 or greater only once during the course of the one week

of testing off-site. She explained that this disparity “confirm[ed] that distance from the

barns/lagoons drastically reduces odor impact.” J.A. 4719.

Based on the results of her testing, Dr. Dalton opined, “to a reasonable degree of

scientific certainty,” that Kinlaw Farms’ normal operations “do not produce odors that

travel offsite at an intensity, frequency or duration that would be considered a nuisance

level at Plaintiffs’ properties.” J.A. 4716. Dr. Dalton also provided several reasons why

subjective reports of odors often do not align with objective measurements of odor,

particularly when “individuals . . . are motivated to complain about a putative odor source.”

J.A. 4716.

At her deposition, Dr. Dalton provided some clarifying comments about her

opinion. For example, when asked if “smelling hog odor at any concentration can cause

annoyance,” she replied, “[i]t depends on the individual.” J.A. 4753. And she

136 acknowledged that “[t]he annoyance one might experience [from breathing hog odor] could

happen whether or not the odor is strong.” J.A. 4754. She reiterated that “there’s incredible

individual variation in what people can smell and how they react to what they smell.” J.A.

4755. But she opined that she would not consider “a hog odor at a 4 all day at [someone’s]

house” to be a nuisance “because it would be a weak odor” regardless of how that person

personally experienced it or responded. J.A. 4568–69. Lastly, Dr. Dalton admitted North

Carolina had not adopted an objective measurement, and described instead that “there

really isn’t a standard” because it’s subjective, based on individual complaints. J.A. 4771.

Plaintiffs sought to exclude Dr. Dalton’s olfactometer testing and the opinion she

formed from those results. 22 The district court agreed to do so on the ground that it “would

have a strong likelihood of confusing or misleading the jury” and “would not be helpful to

the jury.” J.A. 8596. The district court explained that, unlike the jurisdictions Dr. Dalton

referenced in her expert report, North Carolina had not adopted a dilution to threshold ratio

or other objective measure for determining when an odor nuisance exists. In its view, this

evidence would not aid the jury in determining whether an odor nuisance existed, and it

would confuse them by equating a nuisance with an objective measure that North Carolina

did not require.

22 Plaintiffs did not object to Dr. Dalton testifying about “the biology of olfaction and factors that influence individual perception of and response to odor,” J.A. 8596 n.2, and the district court held that Dr. Dalton could testify about the “unreliability of self-report of odor” without invading the province of assessing Plaintiffs’ credibility about the odors they smelled and their source, J.A. 8596.

137 2. Analysis

The district court abused its discretion in excluding Dr. Dalton’s testimony about

the olfactometer tests, the commonly used 7:1 dilution ratio, and her opinion that the test

results did not show that Kinlaw Farms operated as a nuisance. None of the grounds the

district court articulated is an appropriate reason to exclude this testimony.

Expert opinion is admissible to help the factfinder “determine a fact in issue,” Fed.

R. Evid. 702, and Dr. Dalton’s testimony was probative of a central issue before the jury:

whether a reasonable person would conclude Kinlaw Farms’ operations constituted an odor

nuisance. As described earlier, North Carolina’s nuisance law required the jury to assess

whether a “substantial” and “unreasonable” interference had occurred. See supra Part I.A.

One aspect of that determination involves considering “the degree of intensity and

disagreeableness of the [odors], their times and frequency, and their effect, not on peculiar

and unusual individuals but on ordinary, normal and reasonable persons of the locality.”

Hooks v. Int’l Speedways, Inc., 140 S.E.2d 387, 392 (N.C. 1965).

Dr. Dalton’s testimony was plainly relevant, and helpful, to this factual

determination. Her test objectively scored the disagreeableness of the odors emanating

from Kinlaw Farms. Its results demonstrated that most of the readings fell far short of a

common standard for assessing the existence of an odor nuisance. And rather than being

anecdotal in nature, Dr. Dalton’s testimony would have provided the jury with objective,

scientific evidence about the frequency, intensity, and duration of odors detected on and

near Kinlaw Farms. The jury could have weighed this data when considering whether

138 Plaintiffs proved the existence of an unreasonable and substantial interference to the use

and enjoyment of their property.

For this reason, Dr. Dalton’s testimony is a classic example of the relevant and

reliable expert testimony that is admissible under Daubert and Rule 702. Westberry, 178

F.3d at 261 (stating that Rule 702 “was intended to liberalize the introduction of relevant

expert evidence”); id. (stating evidence admissible under Rule 702 should be excluded

under Rule 403 only if it “has a greater potential to mislead [or confuse] than to enlighten”).

In contrast to Dr. Rogers’ testimony, no Daubert concerns arose about the methodology

Dr. Dalton used to conduct her test and form her opinion. While Dr. Rogers’ testimony was

based on a novel proxy theory of odor that provided no information about the intensity,

frequency, or duration of either the proxy pig2bac or actual odors, Dr. Dalton’s testimony

was based on tests conducted using gold-standard equipment and methods widely accepted

and used in the industry to test the actual intensity, frequency, and duration of odors at and

near Kinlaw Farms. As such, Dr. Dalton’s test results were admissible, but subject to

traditional methods of challenging its weight for purposes of establishing the ultimate issue

before the jury. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation

of contrary evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence.”); Bresler, 855 F.3d at 195

(“[Q]uestions regarding the factual underpinnings of the expert witness’ opinion affect the

weight and credibility of the witness’ assessment, not its admissibility.”).

To be sure, North Carolina has not adopted an objective standard for establishing a

nuisance. But that is not the same thing as North Carolina having rejected the admissibility

139 of evidence about such an objective standard as one part of the decision-making process—

subject to cross-examination and proper instruction—about whether an odor nuisance

exists. Indeed, no North Carolina odor nuisance cases have required the exclusion of

olfactometer readings for the factfinder’s consideration. Moreover, one part of North

Carolina hog-odor regulation has adopted objective standards that rely on the 7:1 dilution

ratio as a basis for assessing compliance with the state’s odor-control objectives.

Specifically, in deciding whether to issue or modify permits related to hog farms that use

the lagoon-and-sprayfield waste management system, the relevant authorities are required

to determine that the “system will meet or exceed” certain performance standards,

including that it will “[s]ubstantially eliminate the emission of odor that is detectable

beyond the boundaries of the parcel or tract of land on which the swine farm is located.”

N.C. Gen. Stat. § 143-215.10I(b)(2). 23 And the implementing regulations for this provision

state that one way to satisfy this requirement “at new or modified swine farms” is by

obtaining a field olfactometer test documenting that “the measured dilution-to-threshold

ratio [is] less than or equal to 7:1.” 15A N.C. Admin. Code § 2D.1808(d)(1). 24 Thus, North

23 This is the current location of the statute, as amended and made effective June 12, 2020. The identical requirement was previously codified at § 143-215.10I(b)(3), and this prior location is cross-referenced in the cited regulations. 24 Plaintiffs’ suggestion that North Carolina does not currently rely on this standard relies on shaky support (an agency PowerPoint), but is ultimately beside the point. The relevant inquiry is whether it would have been so inconsistent with North Carolina law as to prejudice Plaintiffs if it were admitted. North Carolina officials charged with promulgating standards in related areas of the law have recognized this objective measure of odor may be relevant to the analysis.

140 Carolina has accepted this objective measure in other, closely related, areas even if it has

not been specifically adopted in civil nuisance claims. Its having done so bolsters the

conclusion that it would not be inconsistent with North Carolina’s understanding of

industrial hog farm odors to put Dr. Dalton’s testimony before the jury for it to assess the

evidence’s weight for purposes of determining whether an odor nuisance existed.

In addition, methods well short of exclusion could have been used to alleviate any

concern about confusing or misleading the jury. For example, Dr. Dalton’s testimony

would have been subject to cross-examination, where Plaintiffs could have urged that the

jury should afford the testimony little weight for any reason, including that North Carolina

nuisance law uses a different, lower standard for establishing liability. The court could have

tailored a cautionary instruction to remind the jury of Plaintiffs’ burden under North

Carolina law so as to limit how Dr. Dalton’s testimony would be used in assessing whether

a nuisance existed. Relatedly, the district court could have prohibited Dr. Dalton from

opining on the ultimate issue of the existence of a nuisance and instead limit her testimony

to the results of the olfactometer tests, which provided an objective measure of the dilution

ratio quite apart from any legal conclusions Dr. Dalton arrived at from interpreting them.

E.g., Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993) (observing that even if a district

court determines the expert should not opine on the ultimate opinion, that “does not

necessarily banish him from the stand altogether, because his specialized knowledge may

still assist the trier of fact in other ways”).

Lastly, the exclusion of this evidence was not harmless because the ruling prevented

Murphy-Brown “from fully developing evidence relevant to a material issue.” Schultz v.

141 Butcher, 24 F.3d 626, 632 (4th Cir. 1994). Specifically, the court’s ruling prevented

Murphy-Brown from presenting scientific evidence about the absence of frequent and

intense odors on Plaintiffs’ property for the jury to weigh against Plaintiffs’ anecdotal

evidence about what they experienced on a regular basis. In addition, although there’s no

equivalent to Newton’s Third Law respecting expert witnesses requiring that every trial

involve “an equal and opposite expert” from the opposing side, Harrington v. Richter, 562

U.S. 86, 111 (2011), it’s nonetheless relevant that the district court’s decision to exclude

Dr. Dalton created an imbalance in the parties’ presentation of evidence. As noted, the

district court admitted Dr. Rogers’ unreliable pig2bac testimony, which allowed Plaintiffs

to present a novel and unfounded hypothesis that the presence of pig2bac served as a proxy

for hog odor being on Plaintiffs’ property. But it excluded Dr. Dalton’s olfactometer

testimony, which prevented Murphy-Brown from presenting a reliable and tested method

of assessing the intensity and frequency of odors actually recorded. If jurors had heard just

Dr. Dalton’s testimony (because Dr. Rogers’ testimony was improperly admitted) or both

Dr. Dalton and Dr. Rogers’ testimony (upon finding him Daubert qualified), they may have

reached a different verdict based on the totality of the evidence before them. Because

there’s “a high probability that the error affected the judgment,” Huskey v. Ethicon, Inc.,

848 F.3d 151, 160 (4th Cir. 2017), the improper exclusion of Dr. Dalton’s testimony

warrants vacatur and a new trial.

Based on the foregoing, the district court abdicated its gatekeeping function before

allowing Dr. Rogers to testify. Regardless of how a remand for the district court to perform

142 its proper Daubert role would play out with respect to the rest of Dr. Rogers’ testimony, it

was an abuse of discretion to admit his testimony as to pig2bac as a proxy for odor given

that—at least as presented in the record—it does not satisfy Daubert or Rule 702. Further,

the district court abused its discretion in excluding Dr. Dalton’s testimony about the

olfactometer tests she performed at and near Kinlaw Farms. These prejudicial errors require

a new trial.

IV.

While Plaintiffs may have cognizable nuisance claims, their pursuit of victory

through overtly irrelevant, prejudicial, and unreliable evidence makes the resulting verdict

invalid. For the reasons discussed, it is impossible to know that these errors did not

materially affect the decisions to hold Murphy-Brown liable for compensatory damages in

the first instance, to assess any punitive damages award, and in setting the amount of those

damages. See Sparks v. Gilley Trucking Co., 992 F.2d 50, 53 (4th Cir. 1993) (recognizing

that error in admitting evidence is not harmless if the court cannot determine whether the

error affected the outcome of the case). 25 Accordingly, the district court’s evidentiary errors

25 Although these errors relate solely to Plaintiffs’ allegation of a hog odor nuisance, there can be no doubt from the record that this aspect formed the core of Plaintiffs’ case even though they also presented evidence of other alleged interferences in the form of pests and noise. Given that the jury’s verdict form did not require information about what type of interference occurred, it is safe to conclude that these evidentiary errors affected the entire verdict. See J.A. 9177 (indicating jurors responded “yes” to the broad question, “Did the defendant substantially and unreasonably interfere with the plaintiff’s use and enjoyment of his or her property?” as to each plaintiff). Relatedly, because I believe these errors require a new trial, I do not join—nor need I express a view regarding—the remaining issues Murphy-Brown has raised on appeal. 143 constitute reversible error as to both liability and damages. I therefore respectfully dissent

from those parts of the majority opinion reaching a different conclusion.