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

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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.

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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