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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 sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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