lawsuits and over five hundred planets all of whom are neighbors or farms and they claim that the odor and flies and buzzards from the farms amount to a private nuisance there are a total of eighty nine dollars farms in the litigation i'm seventy lighting and if we assume that the farmers are necessary parties tell us why they are indispensable parties under subsection b i think that's that is the wreck russia if they clearly are to be joined it's feasible under a we think they're insensible because of all four factors that come out in favor conclusion number one the the effect of a ruling that the farm is essentially  operating in violation of the law is that it can no longer operate it should have been obvious that that ruling would require the farm to stop operating in to be depopulated so it's clearly harms the farmers interest on number two there's no way to lessen that impact based on anything that the court does now the plaintiffs in the trial court said well murphy brown could step in and spend a lot of money on order control technologies and that would solve the farmers problem but the question under will need to be is what could the court do to protect the farmers interest and what the reason the district judge heard was because the the court put in the hands of murphy brown the responsibility of of saving the farmer from the situation and that's a violation of the nd prong on the what makes it in an adequate and that's so there's a judgment against murphy brown the farmers are not party and there's no there's no claim brought against  what under that section what makes it in and well because the farmer is in breach of the contract the contract provisions age ninety to eighty five the contractor had the farmer had the responsibility to control order the you know that was but what stop dealing with chemical and i could that could that could have taken place for a great variety of reasons well but i think it was it was it was certainly predictable at the outset that we that we rely on homebuyers which your honor cited you shan't go on national union fire and doing for all involved contract situations where there was an absent party and the court has said that the contracting parties the paradigm of an indispensable party that the verdict not only shuts down the farm it leaves the farmer on the hook for having to pay the judgment to murphy brown so the farmers interests are clearly impaired if i don't i don't mean to tell you oh you prejudice with respect to the introduction of the evidence the nonparty corporate entities in the references to the foreign ownership of the and when you look at the opening statement closing argument their theory of the case was this was a nuisance for say murphy brown should have known this type of farming causes bad odors you cannot base a punitive damage claim on a nuisance for say it was their periods for a good long time and also the treatment of the waste with the dead did trucks and that layout to the condition to persist when some kind of cover to the open air p s would have significantly mitigated in other words it just these open air couple points on that none of these point of ever complaint to the company about this far the bulk of the evidence in the case related to problems at other far she was undisputed that there were no complaints by these plaintiffs to murphy brown number two or three brown is direct this is this according to the contractual language murphy brown says redirect grower management proceed procedures we mandate design and construction of operations we require technological enhancements that cetera how many homes are placed at a given operation now it wants the control in terms of the contract  and the question i have is whether you can assert that control in a contract to your advantage and then all of a sudden back away from the control when it comes to a verdict and say oh it had nothing to do is when  conduct that satisfies the north carolina standard it can't be that you just used it with you in springfield system or purchased from a farm that did it's got to be conduct specific to killa if the court looks at only two documents in this case it really urge you to read the attorney general he concluded that they were economically feasible what is economic feasibility me it means that if they could certainly have to spend more but if the cost of that control would produce less the hog population in all of north carolina by more than twelve percent then it was not economically feasible and the designee concluded after fifteen million dollars of money dance by smithfield and ricky brown that there was no alternative technology that was economically feasible murphy brown was entitle to rely on that finding desert and on the attorney general agreement so the question is what happened at kin law that would warrant punitive damages and they don't have an answer to that because there were no complaints or kinlaw there was nothing specific to ken law that that would have told murphy brown that they we yes ok and they're there but you know it's eighteen months before trial there was twelve c motion to dismiss for failing to join the indispensable party with regard to the expert issue the court heard in admitting the testimony of shane  rogers his the quiz the core of his testimony was he could detect bacterial biomarkers on the point of houses in the use that as a proxy for odor even though he admitted that there was no scientific study supporting that  there was no study correlating that with odor and he didn't even know if it smell that's d all well there are not there was a hearing a lot on the job or issues that he wasn't qualified in that he admitted he was not an order expert and he couldn't tell you a pic to back smell so we could use that as a proxy and at the same time that the judgment that in the judge excluded murphy brown's expert dr dalton who was a world a nationally renowned expert in over odor measurement and her study at this particular farm which showed that the orders were not nearly as significant as claimed that was all excluded the judge allowed an expert to counteract or through  to take on what mr rogers test writers absolutely because the they their their key testimony was theirs pick two back on your houses that's a proxy for order that should not have come in and we were not able to put in our counter testimony that objective measurement showed the order was of significance or would absolutely affect substantial rights and the court applied the same daubert ruling in all the later cases so i mean this this is the lead case and will control the outcome of these issues now i do want to get back way with respect to particular witness particular does that necessarily have a different judge for example could not rule different well i think this court's decision in nice is a good example explore both of them thank you your honor before i if i could just get one point in before i turn to the financial evidence on the damages issue is also critical in this case as a matter of walk or heard in its ruling about its interpretation of the two thousand seventeen right to farm that act clarified that under north carolina law the measure of damages loss of property value not not but it's kind of like a farm act does doesn't apply here you would agree that we're you compelling when you read re re involved exactly the same language the step the amendment becomes effective on october one in a plastic plants rising on or after that date and the supreme court in north carolina said that language is not the lumen it be as effective date language like that is in every for statements that go their way we have four statements that go our way and either way under north carolina law they're in admissible and so what's left well they say that there was an amendment well the bill was in the legislature initially it when you look at the complaint new look at the trial the horror farman here it certainly provides many jobs in eastern north carolina and i understand that and it's very springs look at your i mean it's got to be environmentally harmful to the waterways seeping into the water nobody wants another flint michigan tragedy down the road and this it's some of these conditions you were away on to pursue and i thank you know they're less fortunate fellow citizens they have property rights in many of the homes surrounding an operation of this sort they don't go for our price the people who live in them you know they have a right to good health they have a right to wouldn't those conditions fees were more politically powerful wouldn't those conditions have been cleared up sooner rather than later and that is  that is my problem you know i think a couple things are i think you're getting a slanted view of the facts because the objective order testimony was not allowed in the order is not as they claim it is it but we couldn't put that evidence on but more fundamentally that what you just said judge wilkinson is what a legislator would say as to why this type of farming should not be allowed i think this is a separation of powers the legislature decided in one thousand nine hundred and seven and again in two thousand and seven to grandfather and specifically allow this type of farming it's regulated it's permitted there's a general permit virtually every farm in north carolina operates this way as it does you know i do respect allegedly we respect the right to farm act the date of its application but you know the legislature you didn't repeat over a common law rights of the citizens of north carolina and you know that it is also discussion of vested rights and and the danger of appealing vested property rights unless there's independent evidence of something you did that was really bad and they don't have that evidence with regard to kinlaw their case is based on the idea that you should have used this this farming system at all and i understand that people think this is not a good method of farming but that's a legislat is the question is is this automatically removed from the purview of a jury of your rights you have legislated rights and there's not a legislative and we're not refusing compensation yes your honor thank you i know you've raised a ton of like to hear your response to the judge on that point that the plaintiffs as you know repeatedly emphasized the executive compensation by the grandparent companies executives and by the great grandparent debbie h group if we think that they are that it was wrong to say that that was somehow relevant to murphy brown civility to buy her control technologies because that would have required a failed piercing claim to treat all of these corporations as and that violates fundamental principles of corporate governance and long thirty years opened the door for that type of test which your response to i don't i don't think he did the  d financial information and the w h group financial information coming in the their argument that you could consider that just to show that you could afford or control technologies is like saying if somebody somebody has a claim against my daughter she could come to me  and i could give her some money to help her out and i'm now she's responsible for everything that i could do to help her that's never been the law this is a piercing and they they didn't allege a piercing claim they didn't try to prove a piercing claim and if i will it's north carolina law for them to try to get all david but i don't think you can draw that inference unless you you satisfy a piercing standard are there any limiting instructions not with regard to the financial information he makes it very clear what we're not asking for any arms to be shut down we're not asking for any changes to be made except the changes that would be made to protect the neighbors in the environment they know what those changes are they can afford to do th was based on testimony provided to the jury the jury understood that there were many ways in which murphy brown could have a bit of these problems and then chose not so this is not a case of an industry under attack this is not a case where north carolina agricultural fall apart this is a case where murphy brown is being held responsible for its own match it's you know the thing i'd like to address is the misstatement that argument is to the effect of the evidence  jobs that are being created here on that i would say that there also would be jobs that would be created if they put covers on you and then so the fact that you see evidence of x one billion dollars chinese holding  mission of the corporate profits and it mission of the executive soured it seems to me that you know maybe maybe the corporate profits could be used in the interest of abatement but what relevance does someone exert executive salaries the amount that they're getting personally pay since had several experts that were not allowed and we had dr wrings testimony greatly curtailed by the court the court definitely had a you know you had some experts excluded yes we did your honor like who i forget their names off the top of my head i can always offer you a twenty eight day but there were literally at least two experts who were excluded what were they what were your excluded experts can attest to the top of my head i don't remember specifically but they were but the concept that somehow all these rulings just  point you're making is that the evidentiary rulings didn't follow that that's right and that there were several plaintiffs experts who were in excluded right your honor but does that exact speak to judge talking about whether there needed to be a dog or hearing i think there's a mischaracterization of what dr raj was there to testify to murphy brown keeps suggesting that that dr raj was there to testify to measurement of odor and he was not he was not he was not an expert on that he did not testify on that specifically he was there to testify about the movement of chemicals through the air and so he and he testified on that very capably there was and so when he said that he did not have peer reviewed literature allowing the use of pig to back as a as a proxy for odor sure that's true he wasn't using pixie back as a proxy for odor he was simply using picture back as an example some here's his here's his answer on direct examination so if you go and you go  search for the two at smithfield site and you find it what can you tell members of the jury about odor from their answer the odors are going to transport in a similar way with the part that means the likelihood of odors is very high at that site so what concerns me in this case is at least it appears on the surface that there's a witness expert witness for the point is going to testify but yet he's allowed to testify about this relationship to her and he does it as if it's an objective measure force your all your argument is well subject but then when it comes to excluded and i have a great deal of difficulty seeing well your honor i think that that gets to the mis characterization because dr dalton was not there did and was not there to testify and did not testify even in  the in the segment you just read as to the magnitude of order it's about the he was there about the existence of a and so or the existence of more accurately the existence of chemicals that cause he did not testify to the magnitude or i'd like to come back to that  have the failure to do a dog or hearing for this type of test and what would appear to be a dawber witness for the other side is not permitted to testify as to those testify on the existence of order there's no debate that picture back only exists in hong feces and so therefore and that it then had to have traveled through the air to exist on the homes of the point is now when we get to dr rogers testifying on the subjectivity oh and i should add that dr dalton was then countered by dr clancy in trial that he was tested front of the jury the jury had the opportunity to evaluate that now when we talk about dr rogers she was there to testify that odor can be measured to the magnitude of the order and her purport of the objective measure of the order but two problems existed with dr dalton's testimony st of all she admitted in her deposition that she had never actually  reviewed or was on unfamiliar with the north carolina standard for nuisance so she's trying to say that this is objectively not a nuisance without being familiar with the law of nuisance in the carolinas so that that was i wouldn't go to the weight of the evidence your honor because she was tested because that's the ultimate question and she is testifying that she doesn't know the answer to the ultimate question and yet she just yet she says she plans to testify on the answer to the ultimate question without understanding the standard for the ultimate question goes to more than just the weight of the evidence that she is or if she's completely undermined her own who question on an ultimate question then i think that that printers are excluded and i would also then loop around back to the whole concept of inequity because as i mentioned before dr dalton was not  murphy brown then offered a counter expert dr clancy so it's not as if there was any sort of inequity there there there was an expert testimony on both sides on these issues that are going to that opinion it damages question actually it's a question that w posed in council yes what happened that canon law that would have subjected murphy brown to peer damages what's the answer to that what is the question is what happened operation and other factors all of these things were things to own which there was testimony about kinlaw operation at trial so for instance distance neighbors you see in the you see in our brief where we have a picture of how close they are to the neighbors how about how murphy brown cut the trees in the way that funnels the chemicals toward the the property of the neighbors farm operation there's plenty of testimony about the nuisances created by the trucks coming in at two am with all their orders and all their honking and all of that that's farm operations murphy brown is the company that decides how many trucks come when they come and how that murphy brown is the company that placed the road right in front of these people's homes when it didn't have to brown about truck speed on the road right from their homes in the end though that goes to knowledge complaints are not an element of liability or punitive damages here they're just evidence of knowledge and there is plenty of evidence of knowledge supporting the jury's verdict complaints are unnecessary they knew where they were citing this farm they knew they were putting these trucks thirty feet from these people's homes they knew they were sending those trucks there to him to honk in noise with the orders they knew that  that they had placed this that they had insisted on this hog operation growing within a half mile of these neighbors mr ken law actually originally proposed a site that was about a mile away from any neighbors and murphy brown told him he could not cite his farm there because there was a nearby hog farm and the airborne chemicals from his farm might make hogs sick at the other on well their own expert testified that those that those chemicals that could make are also the chemicals that carry odor so they knew very well when they placed this farm right by these neighbors that they were doing so in a way that the the owners would carry to their properties and this expert to testify or we're on the subject of subsequent trials which i admit of the i don't think should be a consideration here but since we're on that topic i will say that their expert murphy brown's expert dr dalton did testify in subsequent trials and she wasn't completely our farmers in law is a necessary part we go to night t v on whether you're an indispensable there appears to be some prejudice exactly an adequate judgement this is exactly what needed to happen murphy brown needed to know that its policies and its choices lead to liability so that it could make new choices that allow the nuisances to be a bigoted going forward and that's really all that and that has happened going back to subsequent trials the things that have been amount subsequent trials that they have been challenging the ability to get punitive damages they have stated that they completely change their policy on trucking and when trucks can be can or in front of people's homes they change their policy on refrigerated boxes so you know so yes with the judgement has been adequate now getting back to was allowed to participate in the closing arguments murphy brown said can law testified against us and yet so can law was completely aware what was going on there's no need to protect an absolute party insofar as they somehow didn't know what was happening they could have b rought themselves into the case they did not claim an interest and so in light of that in light of that there's it's plainly established that they are not necessary party you're not an indispensable party the right party parents set wrecked i'm not sure that that is correct but i think the that it doesn't matter because if the if the requirement were to put lagoon covers and other under control technologies on these farms the a g t agreement and the designees findings were it would reduce the hog farm population by up to fifty percent in north carolina north carolina's not the only state where you have hot farms there are many other states so the cost of  remediation dealing with these issues greatly affects the market and that's why you had the a g agreement and the designate deciding whether there was a feasible technology and you want to correct a couple misstatements it's true that there was never a complaint by any plaintiff to murphy brown with regard to the one complaint that mr breckenridge mentioned to kinloss eight hundred and seventy two of the joint appendix the testimony by kimmel was my nine the only thing that i ever received murphy brown knew and it was reasonable from every get around this contractual language read murphy brown this is claiming and claiming detail control over practically every aspect of june was operation but where's the willful wanton conduct that's the that's what's missing from punitive damage control is a different issue it comes up in other places but with regard to punitive damages we've got to have willful want conduct and we don't have it with regard to kill law and you know your honor made a and you know a passionate argument for why this method of farming should be used but north carolina has reached a different judgment and following that legally permitted system cannot expose you to relationship with someone for which you claim to be controlling are wouldn't that would the contract itself give you the right or indeed the obligation to examine reggie i think you hit the nail on the head i think the district judge did not treat the experts even handedly the rulings were not even handed in this case the expert that mr breckenridge mentioned on their side who was excluded was a culture or a cultural anthropologist not an expert that went to the core issue in the case which was severely of order we agree that each expert has to be evaluated on his own terms dr rogers was not an expert on the relationship between the two back as a proxy for oter he admitted that that testimony should not have been allowed and it was hugely prejudicial because the plaintiffs were allowed to say there's no big cc's on your home and that's a proxy for oter very prejudicial and we couldn't counter that with objective testimony from dr dalton that the owner wasn't as they claim and i think let me just end by saying this really is a separation of powers issue for the plaintiffs are trying to use this case to in other cases that are following it too for smithfield and murphy brown to abandon that look in springfield samina force hundreds of farmers in north carolina to abandon that system which is perfectly legal under north carolina law you can't force a party to do that with the cudgel of punitive damages without evidence that in this case as to these points there was misconduct that warrants it and for that reason the court should reverse thank you thank you come to greet counsel take a brief recess