ILNews

COA: Indiana hog farmer’s suit against N.C. operation to proceed

Back to TopCommentsE-mailPrintBookmark and Share

A North Carolina commercial hog operation must face an Indiana farmer’s claims of nuisance, negligence and trespass after an intentionally introduced, highly contagious virus infected his neighboring herd, causing damages in excess of $275,000.

The Indiana Court of Appeals on Thursday rejected an appeal of the Tippecanoe Circuit Court’s refusal to grant summary judgment in favor of the North Carolina operation, TDM Farms.

In TDM Farms, Inc. of North Carolina and Dale Johnson v. Wilhoite Family Farm, LLC  No. 79A02-1101-PL-33, the COA dismissed TDM’s arguments that Wilhoite Family Farm’s claims were either preempted by the federal Virus-Serum Toxin Act, 21 U.S.C. Sections 151-159, or they are barred by Indiana’s Right to Farm Act, Ind. Code 32-30-6-9.

TDM had contracted to use Dale Johnson’s farm to raise weaned female pigs in a “gilt acclimation facility.” The company used a serum to inoculate its pigs en masse against a highly contagious virus, Porcine Reproductive and Respiratory Syndrome.

Alan Wilhoite, owner of the Wilhoite farm, said his herd three-quarters of a mile away became infected a short time later with a strain of PRRS that was a 99 percent genetic match to the strain from the hogs TDM inoculated with the serum.

Wilhoite farm argued that it was never notified about the inoculation program, and an outbreak of the disease requires “biosecurity” measures be taken to quarantine animals or otherwise protect them from infection.

“It is the custom and practice in the hog industry, for both operators and their veterinary consultants, to alert neighboring or potentially affected operations of PRRS,” Wilhoite’s suit says.

 The appeals court found no reason the trial court should have granted summary judgment in favor of TDM, and that because the claim is not covered by federal law, the suit is properly in state court.

The court also rejected TDM’s claims that the suit would be barred by the state’s Right to Farm Act.

“The Act, by its plain terms, was intended to prohibit nonagricultural land uses from being the basis of a nuisance suit against an established agricultural operation. I.C. § 32-30-6-9(b). Our case law has consistently applied the law according to the General Assembly’s plainly stated intent, and we will not reconsider those conclusions for TDM’s sake,” Judge Edward Najam wrote in the unanimous opinion.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
ADVERTISEMENT