TDM Farms, Inc. of North Carolina and Dale Johnson v. Wilhoite Family Farm, LLC

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
PHILIP A. WHISTLER GARY P. PRICE
ADAM ARCENEAUX JOSEPH P. ROMPALA
BRIAN J. PAUL Lewis & Kappes, P.C.
Ice Miller LLP Indianapolis, Indiana
Indianapolis, Indiana
CAROL SPARKS DRAKE
SCOTT P. SULLIVAN Lewis & Kappes, P.C.
Flynn & Sullivan, P.C. Zionsville, Indiana
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE:
MIRIAM E. ROBESON
FILED
Jun 07 2012, 9:18 am
Flora, Indiana
CLERK
of the supreme court,
IN THE court of appeals and
tax court
COURT OF APPEALS OF INDIANA
TDM FARMS, INC. OF NORTH CAROLINA )
and DALE JOHNSON, )
)
Appellants-Defendants, )
)
vs. ) No. 79A02-1101-PL-33
)
WILHOITE FAMILY FARM, LLC, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-0908-PL-39
June 7, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
TDM Farms, Inc. of North Carolina and Dale Johnson (collectively, “TDM”)1
bring this interlocutory appeal from the trial court’s denial of their motion for summary
judgment against Wilhoite Family Farm, LLC (“Wilhoite”). Wilhoite had filed suit
against TDM alleging nuisance, negligence, and trespass after TDM intentionally
introduced a highly contagious virus—the Porcine Reproductive and Respiratory
Syndrome (“PRRS”)—to its hog farm, which then spread to Wilhoite’s neighboring hog
farm and caused significant loss. On appeal, TDM contends that summary judgment is
appropriate because Wilhoite’s claims are either preempted by the federal Virus-Serum
Toxin Act (“the VSTA”), 21 U.S.C. §§ 151-159, or they are barred by Indiana’s Right to
Farm Act, Ind. Code § 32-30-6-9.
We hold that Wilhoite’s claims are outside the scope of the VSTA and
corresponding federal regulations. We also hold that the Right to Farm Act does not
apply on these facts. Thus, we affirm the trial court’s denial of summary judgment.
FACTS AND PROCEDURAL HISTORY2
TDM is a North Carolina-based commercial hog farming operation. Its primary
breeding facilities and sow herds are in North Carolina. But once a pig is weaned from
its mother, TDM ships the pig to a “finishing farm” where the pig is grown to market
weight. TDM currently has about forty finishing farm contracts in Indiana, which, before
1
Although Dale Johnson has separately filed a brief, in it he “adopts by reference the brief of
appellant TDM.” Johnson Br. at 1. Johnson adds no other arguments or facts, and he has not filed a
separate appendix.
2
We held oral argument on April 23, 2012.
2
2008, included a contract with Dale Johnson for use of his farm in Tippecanoe County
(“the Johnson farm”).
In January of 2008, one of TDM’s North Carolina farms (“TDM #5”) broke out
with PRRS. PRRS is a highly contagious porcine virus believed to have hundreds, if not
thousands, of different genetic strains. The virus can be spread in a number of ways: by
contact with an infected pig; in utero from an infected mother to her fetus; or by contact
with an area, such as a barn, shipping truck, or farmer, that was recently contacted by an
infected pig. It is believed that insects and birds are capable of spreading the virus and,
while “difficult to document,” a leading theory suggests that PRRS is an airborne virus.
See Appellant’s App. at 515-16. Once a herd is infected, the virus tends to remain for an
extended period of time. Along with respiratory symptoms, a pregnant sow infected with
PRRS can have a spontaneous abortion, a still birth, weak piglets, and decreased future
reproductivity. This, of course, results in serious financial harm to farmers.
There is no consensus among veterinarians on how to control, treat, and eradicate
PRRS. One recognized method is to establish a “gilt acclimation facility” in which
immature female swine (gilts) are segregated from the herd, immunized against a
particular PRRS strain via inoculation, and then grown to market weight. See id. at 529-
30. Once mature and immunized, the sows are reunited with the herd at a breeding
facility, and piglets born to those immunized sows inherit the immunization.
In response to the outbreak at TDM #5, TDM renegotiated its contract with Dale
Johnson to use the Johnson farm as a gilt acclimation facility. TDM chose the Johnson
farm based on numerous favorable circumstances, including the farm’s design and size,
3
but also because of its proximity to other breeding stocks owned by TDM and its
proximity to feed mills and other finishing farms. TDM prepared a serum based on the
PRRS strain at TDM #5, shipped gilts from Illinois to the Johnson farm, and inoculated
the gilts. The gilts then became immunized to that strain of PRRS and were eventually
shipped to the breeding farms in North Carolina.
In July of 2009, Wilhoite’s farm broke out with a strain of PRRS that is more than
99% genetically identical to TDM’s strain. Wilhoite’s farm is about three-quarters of a
mile from the Johnson farm, and Wilhoite was never notified by TDM that it had
introduced the highly contagious virus to the Johnson farm. As a result of the PRRS
outbreak, Wilhoite suffered an estimated loss of $275,000.
On August 11, 2009, Wilhoite filed suit against TDM alleging nuisance,
negligence, and trespass. In relevant part, Wilhoite’s complaint alleged as follows:
6. . . . [W]hen a herd contracts PRRS “biosecurity” measures must be
undertaken, and, in the worst case, a herd can be lost and a facility shut
down for decontamination and protection against further contagion.
7. 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 the outbreak of PRRS . . . . Prompt notice and containment
procedures minimize loss from PRRS or its spread.
***
Count I
Nuisance
***
15. The conduct of the hog farming operations of TDM at [the Johnson
farm] constitutes a nuisance, as defined by Indiana law.
4
***
Count II
Negligence
***
19. TDM had and has a duty to conduct it[s] use and control of the
property [the Johnson farm] in a reasonably safe and responsible fashion, as
would similarly situated individuals, and in accord with accepted custom
and practice of the relevant agricultural community.
20. TDM breached that duty owed to Wilhoite.
***
Count III
Trespass
***
24. Through its reckless or negligent conduct TDM has caused a
dangerous pathogen to enter the property of Wilhoite.
25. This trespass has caused economic and other losses to Wilhoite
which are continuing . . . .
Id. at 21-24.
At his ensuing deposition, Alan Wilhoite, the owner of Wilhoite, testified that the
purpose for his lawsuit was “[t]o ensure that [TDM] no longer continue[s] . . . this blood
serum vaccine from North Carolina, and to help ensure that I have a relatively reasonable
chance that I won’t be reinfected with the PRRS virus.” Id. at 225. Likewise, Wilhoite’s
veterinary expert, Dr. Jeffrey Harker, testified that “[t]he only unreasonable conduct I see
is that . . . the virus was brought in a vial and not on a pig.” Id. at 279. Wilhoite’s second
veterinary expert, Dr. John Baker, agreed that the “[d]eliberate infection of animals at an
5
otherwise healthy site with blood serum known to be carrying the PRRS virus poses a
substantial and unnecessary risk that the infections will spread to other sites.” Id. at 262.
Dr. Baker further testified, however, that there were real differences between
inoculation through a serum and simply allowing an infected pig to roam through an
unexposed herd:
What you are doing [with serum inoculation] is getting all of the pigs
infected at the same time. That doesn’t typically happen in a PRRS herd.
And so it poses a larger risk than a positive PRRS finisher. A positive
PRRS finisher is one that has pigs becoming positive to the PRRS virus
over a staggered period of time, maybe a few weeks, maybe a month or
two.
But with serum inoculation, on one day you give the animal live
virus and everybody gets viremic at 7, 14 days, so there’s a lot of virus.
But again the real risk was that in normal production, [each pig] has equal
risk to get PRRS. It’s always out there, it could happen. That’s sort of not
really what’s happening when you initially introduce a virus to a herd and
then, rather than try to control it, you intentionally try to keep the virus
burning. That’s a different situation.
Id. at 253.
Dr. Harker opined that “the Johnson farm is the source of the PRRS contagion” at
Wilhoite’s farm based on the genetic similarity of the viruses. Id. at 435-36. Dr. Harker
also opined that a third party did not cause Wilhoite’s outbreak because the genetic
“RFLP patterns” between TDM’s virus and other nearby strains of the PRRS virus were
different, while the pattern between TDM’s virus and the virus at Wilhoite’s farm was
substantially identical. Id. at 436-37.
In September of 2010, TDM moved for summary judgment, which Wilhoite
opposed. In its motion TDM asserted that Wilhoite’s claims were either preempted by
the VSTA or barred by Indiana’s Right to Farm Act. On October 27, the trial court
6
entered its order denying TDM’s motion. In relevant part, the court concluded as
follows:
[Wilhoite’s] claims are not preempted by VSTA. To the extent the case is
about the injection of animals with a serum, the case pertains to “the
distribution and use of such products” and is “based on local disease
conditions.” It therefore falls within the category of activities which the
State may restrict. However, the case is not really about the serum at all. It
is about starting an infection of a disease in an area free from that particular
strain of the disease and then maintaining a herd of infected animals in that
area. . . .
***
[Regarding the Right to Farm Act, b]oth the Johnson and Wilhoite
sites have been operated as hog farms for many years, so both [locations]
are continuing agricultural operations. . . . Neither one has a superior right
to farm under [the Act]. Additionally, nuisances which result from the
negligent operation of an agricultural operation are not protected by [the
Act]. Here, there is evidence of negligent operation which would, if found
to be true, take the case out of the protection of the [Act].
Id. at 15, 18 (emphasis added; citation omitted). The trial court certified its order for
interlocutory appeal, which we accepted.3
DISCUSSION AND DECISION
Standard of Review
TDM appeals the trial court’s denial of its motion for summary judgment. Our
standard of review for summary judgment appeals is well established:
When reviewing a grant of summary judgment, our standard of review is
the same as that of the trial court. Considering only those facts that the
parties designated to the trial court, we must determine whether there is a
“genuine issue as to any material fact” and whether “the moving party is
entitled to a judgment a matter of law.” In answering these questions, the
reviewing court construes all factual inferences in the non-moving party’s
favor and resolves all doubts as to the existence of a material issue against
3
Amicus Carroll County Agriculture Association has filed a brief in support of TDM.
7
the moving party. The moving party bears the burden of making a prima
facie showing that there are no genuine issues of material fact and that the
movant is entitled to judgment as a matter of law; and once the movant
satisfies the burden, the burden then shifts to the non-moving party to
designate and produce evidence of facts showing the existence of a genuine
issue of material fact.
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009)
(citations omitted). The party appealing a summary judgment decision has the burden of
persuading this court that the grant or denial of summary judgment was erroneous.
Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App.
2009). Where the facts are undisputed and the issue presented is a pure question of law,
we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812
N.E.2d 164, 166 (Ind. Ct. App. 2004).
Issue One: Federal Preemption
Overview
TDM first contends that Wilhoite’s claims are preempted by the VSTA. As this
court recently stated:
Because federal law is the supreme law of the land under the Supremacy
Clause of the United States Constitution, state laws that interfere with or
are contrary to federal law are invalidated under the preemption doctrine.
A cardinal rule of preemption analysis is the starting presumption that
Congress did not intend to supplant state law. This presumption against
preemption takes on added significance where federal law is claimed to bar
state action in fields of traditional state regulation. Accordingly the historic
police powers of the States are not to be superseded by a Federal Act unless
that was the clear and manifest purpose of Congress.
There are three variations of the federal preemption doctrine: (1)
express preemption, which occurs when a federal statute expressly defines
the scope of its preemptive effect; (2) field preemption, which occurs when
a pervasive scheme of federal regulations makes it reasonable to infer that
Congress intended exclusive federal regulation of the area; and (3) conflict
8
preemption, which occurs when it is either impossible to comply with both
federal and state or local law, or where state law stands as an obstacle to the
accomplishment and execution of federal purposes and objectives.
The question, at bottom, is one of statutory intent, and we
accordingly begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accurately expresses
the legislative purpose. Determining statutory intent is a question of law
we review de novo.
In re Beck’s Superior Hybrids, Inc., 940 N.E.2d 352, 356-57 (Ind. Ct. App. 2011)
(citations, quotations, and alterations omitted).
The VSTA states:
It shall be unlawful for any person, firm, or corporation to prepare, sell,
barter, or exchange in . . . the United States, any worthless, contaminated,
dangerous, or harmful virus, serum, toxin, or analogous product . . .
intended for use in the treatment of domestic animals, unless and until the
said virus, serum, toxin, or analogous product shall have been prepared,
under and in compliance with regulations prescribed by the Secretary of
Agriculture, at an establishment holding an unsuspended and unrevoked
license issued by the Secretary of Agriculture as hereinafter authorized.
21 U.S.C. § 151. The VSTA confers on the Secretary of Agriculture, as the head of the
United States Department of Agriculture (“USDA”), authority
to make and promulgate from time to time such rules and regulations as
may be necessary to prevent the preparation, sale, barter, exchange, or
shipment as aforesaid of any worthless, contaminated, dangerous, or
harmful virus, serum, toxin, or analogous product for use in the treatment
of domestic animals, or otherwise to carry out this chapter . . . .
21 U.S.C. § 154. The USDA, in turn, has delegated its authority under the VSTA to the
Animal and Plant Health Inspection Service (“APHIS”). 9 C.F.R. § 101.2. And APHIS
has declared that
States are not free to impose requirements which are different from, or in
addition to, those imposed by USDA regarding the safety, efficacy,
potency, or purity of a product. Similarly, labeling requirements which are
9
different from or in addition to those in the regulations under the Act may
not be imposed by the States. Such additional or different requirements
would thwart the Congressional intent regarding uniform national
standards, and would usurp USDA’s authority to determine which biologics
are pure, safe, potent, and efficacious. However, it has been APHIS’
consistent position that individual States may impose certain restrictions on
the distribution and use of biological products licensed by the USDA based
on local disease conditions when such restrictions are made on a product-
by-product basis. For example, a State is permitted to restrict distribution
of a biological product where a particular disease does not exist in the State
and where use of the biological product would make it difficult to
distinguish between exposed and vaccinated animals.
***
. . . This rule does not preempt any State or local laws, regulations,
or policies, where they are necessary to address local disease conditions or
eradication programs. However, where safety, efficacy, purity, and potency
of biological products are concerned, it is the agency’s intent to occupy the
field. . . .
57 Fed. Reg. 38758, 38759 (Aug. 27, 1992) (emphases added).4
Thus, we are concerned here with field preemption, and APHIS has defined the
scope of its field as “where [the] safety, efficacy, purity, and potency of biological
products are concerned.” Id. The Seventh Circuit Court of Appeals has further
considered the “scope of APHIS’ preemption statement” with respect to a common law
claim that the manufacturer of an animal vaccine had committed a state tort when its
vaccines failed to be effective. Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d
620, 623 (1996). The Seventh Circuit held: “all other courts that have addressed the
issue, including the district court below, have reached a conclusion similar to that which
we reach today, i.e., that state common law claims of the type asserted in this case are
preempted by the APHIS regulation.” Id. (citing Lynnbrook Farms v. Smithkline
4
It is not disputed that a party may file suit to enforce the VSTA’s provisions, but Wilhoite does
not suggest that such enforcement is the basis of its action against TDM.
10
Beecham Corp., 887 F. Supp. 1100 (C.D. Ill. 1995); Murphy v. Smithkline Beecham
Corp., 898 F. Supp. 811 (D. Kan. 1995); Brandt v. The Marshall Animal Clinic, 540
N.W.2d 870 (Minn. Ct. App. 1995)).
In reaching that conclusion, the Seventh Circuit compared the preemption
language used by APHIS with preemption language in federal statutes that the Supreme
Court had held to preempt state common law actions. Specifically, the Seventh Circuit
stated:
APHIS chose language that mirrors preemption language in federal statutes
that has been held by the Supreme Court, this court, and many other courts,
to preempt both state regulations and common law damages actions. In
Cipollone v. Liggett Group, 505 U.S. 504 (1992), the Supreme Court
interpreted the preemption provision in the Public Health Cigarette
Smoking Act of 1969, which amended the earlier Federal Cigarette
Labeling and Advertising Act of 1965. The 1969 provision provided:
No requirement or prohibition based on smoking and health
shall be imposed under state law with respect to the
advertising and promotion of any cigarettes the packages of
which are labeled in conformity with the provision of this
Act.
Id. at 515. The petitioners in Cipollone made the same argument that
Lynnbrook advances here, maintaining that the provision was not intended
to preempt state common law causes of action. The Court disagreed,
finding “such an analysis [ ] at odds with the plain words of the 1969 Act
and with the general understanding of common law damages actions.” Id.
at 521. The Court continued: “The phrase ‘no requirement or prohibition’
sweeps broadly and suggests no distinction between positive enactments
and common law; to the contrary, those words easily encompass
obligations that take the form of common law rules.” The Court thus
rejected the petitioner’s argument and held that the provision preempted
common law actions. Id. at 523-24. The Court warned, however, that the
clause should not be taken as a blanket preemption of all common law
claims. Id. The Court continued its analysis to determine which claims fell
under the specific language of the clause. Id.11
Following the Supreme Court’s lead, we and other circuit courts (as
well as many district courts) have held that language similar to that in
Cipollone, and substantially the same as the APHIS preemption provision,
encompasses common law actions. For instance, in Shaw v. Dow Brands,
Inc., 994 F.2d 364 (7th Cir.1993), we were called upon to determine the
scope of the preemption language in the Federal Insecticide, Fungicide and
Rodenticide Act (“FIFRA”), 7 U.S.C. § 136v(b). The act stated that
“[s]uch State shall not impose . . . any requirements for labeling or
packaging in addition to or different from those required under this
subchapter.” Id. at 370. With Cipollone as our touchstone, we found that
the Cipollone language of “[n]o requirements or prohibitions” was “just
another way of saying a [s]tate shall not impose . . . any requirements,” and
we therefore held that plaintiff’s strict liability and negligence failure to
warn claims were preempted by FIFRA. Id. at 371. Six other circuits have
reached similar conclusions. More recently, we have held that language in
the Medical Device Amendments (“MDA”) to the Federal Food, Drug and
Cosmetic Act, 21 U.S.C. § 360k(a), proscribing “any requirement . . .
different from, or in addition to,” those established pursuant to the MDA
extended to preempt certain common law actions. Many circuits agree.
Lynnbrook has not distinguished the language used by APHIS in any
meaningful way from the language used in FIFRA or the MDA. In the face
of this strong and consistent authority, we are compelled to reach the same
conclusion we reached in Shaw. If common law actions cannot survive
under the 1969 cigarette law, FIFRA or the MDA, then common law
actions imposing additional requirements on animal vaccines cannot
survive the reach of the APHIS provision. See Shaw, 994 F.2d at 371.
***
. . . Thus, if [the plaintiff’s] claims relate to these qualities [of
safety, purity, potency, or efficacy], seeking to impose additional or
different requirements in these areas, they are preempted.
Id. at 627-30 (emphasis, alterations, and ellipses original; footnotes and some citations
omitted).
The Seventh Circuit’s analysis in Lynbrook Farms was ultimately derived from
the Supreme Court’s analysis in Cipollone. In that case, a plurality of the Court held that
the statutory language “ ‘[n]o requirement or prohibition’ sweeps broadly and suggests no
distinction between positive enactments and common law.” Cipollone, 505 U.S. at 521
12
(quoting 15 U.S.C. § 1334(b)); see also Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965, 970
(2012) (holding that “[t]he [Federal Meat Inspection Act’s] preemption clause sweeps
widely . . . . The clause prevents a State from imposing any additional or different—even
if non-conflicting—requirements that fall within the scope of the Act . . . .”) (discussing
21 U.S.C. § 678). But the Cipollone Court then clarified that common law actions were
not necessarily preempted. Rather, in such actions “[t]he central inquiry in each case is
straightforward: we ask whether the legal duty that is the predicate of the common-law
damages action constitutes” a requirement or prohibition, even if non-conflicting, under
the federal statute in question. Cipollone, 505 U.S. at 523-24. That is, where the
common law action is a tort based on the failure to fulfill an underlying duty, we must
consider whether the duty that would be imposed by a judgment for the plaintiff against
the alleged tortfeasor would be a state-imposed obligation in conflict with the scope of
the federal authority.
Accordingly, following Cipollone and Lynbrook Farms, we proceed by
considering whether each of Wilhoite’s three claims invade APHIS’ authority over the
safety, efficacy, purity, or potency of TDM’s serum. In general, TDM asserts that each
of the three claims “concern and relate to the serum TDM used to inoculate its pigs.”
Appellant’s Br. at 19. Wilhoite, on the other hand, contends that each of its claims
merely has “an incidental connection to [the] blood serum.” Appellee’s Br. at 13.
Instead of concerning or relating to TDM’s serum, Wilhoite continues, each of its claims
amounts only to a restriction on the distribution and use of the serum based on local
disease conditions. We agree with Wilhoite that each of its three claims survives.
13
Nuisance and Negligence
We first consider Wilhoite’s nuisance and negligence claims. Wilhoite alleges
that the “conduct of the hog farming operations of TDM” at the Johnson farm
“constitutes a nuisance, as defined by Indiana law.” Appellant’s App. at 22. Indiana law
defines a nuisance as “[w]hatever is: (1) injurious to health; (2) indecent; (3) offensive to
the senses; or (4) an obstruction to the free use of property; so as essentially to interfere
with the comfortable enjoyment of life or property . . . .” I.C. § 32-30-6-6. On the
designated facts, it is clear that Wilhoite’s claim is that TDM’s “conduct of the hog
farming operations” at the Johnson farm was “an obstruction to the free use” of
Wilhoite’s property so as to essentially interfere with Wilhoite’s comfortable enjoyment
of its property. See id.; Appellant’s App. at 22.
Likewise, Wilhoite alleges that “TDM had and has a duty to conduct it[s] use and
control of the [Johnson farm] in a reasonably safe and reasonable fashion, as would
similarly situated individuals, and in accord with accepted custom and practice of the
relevant agricultural community.” Appellant’s App. at 23. “To prevail on a claim of
negligence a plaintiff is required to prove: (1) a duty owed by the defendant to the
plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff
proximately caused by the breach.” Humphery v. Duke Energy Ind., Inc., 916 N.E.2d
287, 290-91 (Ind. Ct. App. 2009).
In relevant part, Wilhoite alleges that TDM acted negligently when it breached the
following duties TDM owed to Wilhoite:
14
6. [W]hen a herd contracts PRRS “biosecurity” measures must be
undertaken, and, in the worst case, a herd can be lost and a facility shut
down for decontamination and protection against further contagion.
7. 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 the outbreak of PRRS . . . . Prompt notice and containment
procedures minimize loss from PRRS or its spread.
Appellant’s App. at 21.5 The designated evidence supports Wilhoite’s allegations
regarding TDM’s lack of notice, precautionary measures, and containment of the virus.
Neither Wilhoite’s nuisance claim nor its negligence claim “concern[]” or “relate[]
to” the safety, efficacy, potency, or purity of TDM’s serum. See 57 Fed. Reg. at 38759;
Lynbrook Farms, 79 F.3d at 630. Rather, Wilhoite’s nuisance claim is focused
exclusively on the general manner in which TDM conducted its operations at the Johnson
farm vis-à-vis Wilhoite’s farm, and Wilhoite’s negligence claim is based solely on
TDM’s failure to take reasonable precautions at the Johnson farm in implementing its
inoculation program. In other words, these two claims focus not on the serum itself but
on TDM’s misuse of its otherwise lawful serum.
5
TDM avers that Wilhoite has failed to designate evidence to show a genuine issue of material
fact as to whether TDM caused Wilhoite’s damages. This is not so. Wilhoite’s veterinary experts
testified that the virus on Wilhoite’s farm was more than 99% genetically identical to TDM’s virus and
that no other strain of the PRRS virus on nearby farms matched Wilhoite’s. This is sufficient for Wilhoite
to at least get to trial.
TDM also argues that the testimony of Wilhoite’s experts is inadmissible because “there are no
generally accepted or scientifically validated standards for determining how close is too close when it
comes to establishing a gilt development site . . . .” Appellant’s Br. at 33. But TDM does not cite to the
record to show where it raised this objection to the trial court, and TDM may not raise an objection for the
first time on appeal. Ind. Appellate Rule 46(A)(8)(a); Rudnick v. N. Ind. Commuter Transp. Dist., 892
N.E.2d 204, 207 (Ind. Ct. App. 2008), trans. denied. TDM’s waiver notwithstanding, the connection of
the virus on Wilhoite’s farm to TDM’s virus is mainly based on Wilhoite’s DNA evidence, and TDM
does not dispute that Wilhoite’s experts based their DNA analyses on reliable scientific principles. See
Ind. Evidence Rule 702(b). We also note that Wilhoite has submitted a scientific article on PRRS—
again, without objection from TDM—in which the authors acknowledge the “apparent long-distance
transmission” capabilities of PRRS. Appellant’s App. at 515.
15
In the language of APHIS’ regulations, these two claims are centered on the
manner in which TDM’s use of the biological product affected local disease conditions,
namely, the conditions on Wilhoite’s farm. For such claims “it has been APHIS’
consistent position that individual States may impose certain restrictions on the
distribution and use of biological products licensed by the USDA[6] based on local disease
conditions when such restrictions are made on a product-by-product basis.” 57 Fed. Reg.
at 38759.
TDM asserts that this express exception to APHIS’ jurisdiction only applies to
“positive law enactments . . . and not ad hoc, case-specific tort judgments.” Appellant’s
Br. at 23. We cannot agree. APHIS’ own language says that the exception applies when
“States . . . impose . . . restrictions . . . on a product-by-product basis.” 57 Fed. Reg. at
38759. And the Cipollone Court expressly concluded that the plain meaning of “imposed
under State law” was not limited to positive law. 505 U.S. at 522-23. TDM’s assertion
that the exception to APHIS’ jurisdiction does not include any common law claims is
contrary to the rationale of Cipollone and the express language of APHIS. See 57 Fed.
Reg. at 38759; Cipollone, 505 U.S. at 523-24.
A judgment for Wilhoite on these two claims would not impose a duty within the
scope of the VSTA or APHIS’ regulations. Again, we must consider “whether the legal
6
There is no dispute that TDM was exempt from APHIS’ licensure requirements since it created
the serum for its own use. See 21 U.S.C. § 154a. TDM contends that this exemption means that the
“local disease exception” does not apply to it. Appellant’s Br. at 23-26. We cannot agree. While the
relevant regulation does refer to licensed products at one point, later the regulation clarifies that it “does
not preempt any State or local laws, regulations, or policies, where they are necessary to address local
disease or eradication programs” so long as the State rule does not concern the safety, efficacy, purity, or
potency of the biological product. 57 Fed. Reg. at 38759 (emphasis added). And TDM’s assertion here
would lead to the dubious conclusion that unlicensed products are subject to greater federal regulation
than licensed products. That conclusion is not supported with citations to authority.
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duty that is the predicate of the common-law damages action” amounts to an “additional
or different[,] even if non-conflicting,” requirement within the scope of the VSTA and
corresponding regulations. Harris, 132 S. Ct. at 970; Cipollone, 505 U.S. at 523-24.
Here, a judgment for Wilhoite on either or both of these claims would mean only that
TDM has no legal right to use the Johnson farm in a manner that interferes with the
property rights of its neighbors—that is, TDM’s use of the Johnson farm may not
interfere with the peaceful use, possession, and quite enjoyment of Wilhoite’s property—
and that TDM take reasonable and customary precautions against an adverse off-site
impact before implementing an inoculation program. Those responsibilities do not
concern the safety, efficacy, potency, or purity of TDM’s serum and, therefore, they
survive TDM’s preemption argument.
Much of TDM’s arguments to the contrary are based on the testimonies of Alan
Wilhoite and Wilhoite’s veterinary experts, Drs. Harker and Baker. Although Alan
Wilhoite and his two veterinarians expressed concern about the danger posed by TDM’s
virus, that concern was expressed relative to Wilhoite’s property, not to the serum itself.
Thus, we do not see how this testimony is helpful to TDM. Neither are we persuaded by
TDM’s assertions that it must comply with APHIS’ requests, if any were to be issued,
regarding the safety of the serum. Wilhoite’s claims do not touch upon APHIS’
authority, and so there is no redundant burden imposed on TDM here.
We also agree with Wilhoite that “TDM’s [preemption] analysis overstates the
scope of APHIS preemption.” Appellee’s Br. at 17 (capitalization removed). As
Wilhoite states, “[t]he consistent refrain in preemption cases is that the lawsuit raises
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claims either in the nature of a products liability action[], i.e., where the claim is
predicated on the preparation of a defective product, or a mislabeling claim.” Id.; see,
e.g., Lynnbrook Farms, 79 F.3d at 623 (considering a common law claim that the
manufacturer of an animal vaccine had committed a state tort when its vaccines failed to
be effective). And during oral argument, both sides acknowledged that no court has ever
held that claims analogous to Wilhoite’s nuisance and negligence claims are within the
scope of the VSTA or APHIS’ regulations, even though the VSTA has existed in its
current form since 1985 and was first enacted in 1913.
The parties do not dispute that, had TDM brought the virus to the Johnson farm on
a pig rather than in a serum, Wilhoite’s lawsuit would raise claims outside the federal
government’s jurisdiction. We recognize that TDM may have had good reason to choose
to inoculate its herd through a serum rather than through happenstance, but we do not see
how that choice is relevant to Wilhoite’s claims. Again, Wilhoite’s claims challenge
TDM’s interference with Wilhoite’s property as well as TDM’s failure to take reasonable
and customary precautions against an adverse off-site impact before implementing the
inoculation program. Those claims are independent of the medium through which TDM
inoculated its herd.
We decline TDM’s request to apply federal authority to territory otherwise
customarily reserved to the States absent an explicit congressional mandate. To interpret
federal law and regulations in the manner TDM requests would require this court to say,
in effect, that no matter the facts and circumstances, there is no state law cause of action
or remedy when one misuses an otherwise lawful serum, regardless of the harm that use
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causes and the collateral damage that results. TDM requests an absolute bar on all state
causes of action, which is an absurd conclusion unsupported by the law. The VSTA and
APHIS’ regulations do not preempt any and all state law claims, and Congress did not
intend to preclude claims arising from the misuse of an otherwise lawful serum. See,
e.g., 57 Fed. Reg. at 38759.
Trespass
We next address whether Wilhoite’s claim that TDM trespassed onto Wilhoite’s
property is preempted. According to Wilhoite’s complaint, TDM trespassed when,
“[t]hrough its reckless or negligent conduct[,] TDM . . . caused a dangerous pathogen to
enter the property of Wilhoite.” Appellant’s App. at 24. In Indiana, “[t]respass is
defined as ‘[a]n unlawful interference with one’s person, property, or rights . . . . Any
unauthorized intrusion or invasion of private premises or land of another.’ ” Travelers
Indem. Co. v. Summit Corp. of Am., 715 N.E.2d 926, 937 n.15 (Ind. Ct. App. 1999)
(omission original) (quoting Black’s Law Dictionary at 1502 (6th ed. 1990)).
The thrust of Wilhoite’s trespass claim alleges an invasion onto its property by
TDM’s virus due to “[TDM’s] reckless or negligent conduct.” Appellant’s App. at 24.
This claim is not artfully drafted and appears to conflate negligence and trespass law.
Insofar as Wilhoite’s claim is based on TDM’s reckless or negligent conduct, the claim is
duplicitous of Wilhoite’s nuisance and negligence claims, which are addressed above.
Thus, for our purposes we read this claim to allege a trespass based only on the invasion
of TDM’s virus onto Wilhoite’s property.
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While the trespass claim states that TDM permitted a “dangerous pathogen” to
enter onto Wilhoite’s property, the claim is based on the invasion of the pathogen and not
its virulence. See Travelers Indem. Co., 715 N.E.2d at 937 n.15; Appellant’s App. at 24.
Thus, the trespass claim does not concern the safety, efficacy, purity, or potency of
TDM’s serum, and it is a valid state law claim. Nonetheless, it would not be
inappropriate for the trial court to give a limiting instruction to the jury that it may not
consider the safety, efficacy, purity, or potency of TDM’s serum but only whether the
manner in which TDM used the serum unlawfully interfered with Wilhoite’s rights to the
peaceful use, possession, and quiet enjoyment of its property.
Issue Two: Indiana’s Right to Farm Act
In the alternative to its preemption argument, TDM contends that Wilhoite’s
claims are barred by Indiana’s Right to Farm Act (hereinafter, “the Act”). The Act “was
adopted by the General Assembly in an attempt to limit the circumstances under which
agricultural operations could become subject to nuisance suits.” Lindsey v. DeGroot, 898
N.E.2d 1251, 1257 (Ind. Ct. App. 2009). According to the Act:
(a) This section does not apply if a nuisance results from the
negligent operation of an agricultural or industrial operation or its
appurtenances.
(b) The general assembly declares that it is the policy of the state to
conserve, protect, and encourage the development and improvement of its
agricultural land for the production of food and other agricultural products.
The general assembly finds that when nonagricultural land uses extend into
agricultural areas, agricultural operations often become the subject of
nuisance suits. As a result, agricultural operations are sometimes forced to
cease operations, and many persons may be discouraged from making
investments in farm improvements. It is the purpose of this section to
reduce the loss to the state of its agricultural resources by limiting the
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circumstances under which agricultural operations may be deemed to be a
nuisance.
(c) For purposes of this section, the continuity of an agricultural or
industrial operation shall be considered to have been interrupted when the
operation has been discontinued for more than one (1) year.
(d) An agricultural or industrial operation or any of its appurtenances
is not and does not become a nuisance, private or public, by any changed
conditions in the vicinity of the locality after the agricultural or industrial
operation, as the case may be, has been in operation continuously on the
locality for more than one (1) year if the following conditions exist:
(1) There is no significant change in the type of operation. A
significant change in the type of agricultural operation does not
include the following:
(A) The conversion from one type of agricultural operation to
another type of agricultural operation.
(B) A change in the ownership or size of the agricultural
operation.
(C) The:
(i) enrollment; or
(ii) reduction or cessation of participation;
of the agricultural operation in a government program.
(D) Adoption of new technology by the agricultural
operation.
(2) The operation would not have been a nuisance at the time the
agricultural or industrial operation began on that locality.
I.C. § 32-30-6-9 (emphasis added).
In Wendt v. Kerkhof, 594 N.E.2d 795, 798 (Ind. Ct. App. 1992), trans. denied, this
court reviewed the legislative intent underlying the Act. We stated as follows: “The
doctrine of ‘coming to the nuisance,’ as codified in [the Act], applies when an
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agricultural operation has been in existence for more than one year and then someone
becomes an adjacent landowner and claims nuisance. In such cases, a nuisance action is
precluded by statute.” Id. (citations omitted). The statute’s policy has also led this court
to conclude that, “when examining the statutory provisions and the policy behind the
Right to Farm Act, it is our view that it has no applicability to the manner in which two
farmers . . . conduct their operations.” Stickdorn v. Zook, 957 N.E.2d 1014, 1024 n.5
(Ind. Ct. App. 2011).
We agree with Wilhoite and the trial court that the Act does not apply in this
action between two established farming operations. See id.; Wendt, 594 N.E.2d at 798.
TDM’s only response to this conclusion is to assert that the text of the Act does not
support the case law, but we cannot agree. 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. We affirm the trial court’s denial of
TDM’s motion for summary judgment on this issue.
Conclusion
In sum, we hold that Wilhoite’s three claims are directed only against TDM’s
alleged misuse of an otherwise lawful serum. As the trial court stated, those claims are
“not really about the serum at all.” Appellant’s App. at 15. As such, those claims are
outside the scope of the federal jurisdiction and are properly before the trial court. We
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also hold that Indiana’s Right to Farm Act does not apply on these facts between farming
operations. Thus, we affirm the trial court’s denial of summary judgment.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
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