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Powell v. Tosh

United States District Court, W.D. Kentucky, Paducah Division

March 8, 2013

TERRY POWELL, et al., PLAINTIFFS
v.
JIMMY TOSH, et al., DEFENDANTS

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For Terry Powell, Kathy Pearson, Larry Pearson, Kevin Groves, Denita Allen, Terry Allen, Lia Thompson, Bridget Powell, Tommy Powell, Jerry Thompson, Kandis Jordan, Michael Jordan, Teresa McMullin, Wilford Ham, Jamey Powell, Tammy Chapman, Darrin Chapman, William Castleberry, Gerald Freeman, Rhonda Free, Plaintiffs: Diana Riddick, LEAD ATTORNEY, Benton, KY; Elizabeth R. Bennett, LEAD ATTORNEY, Louisville, KY; John S. Harbison, LEAD ATTORNEY, Colchester, VT; Randal A. Strobo, W. Henry Graddy, IV, LEAD ATTORNEYS, W.H. Graddy & Associates, Midway, KY; Jerome P. Prather, William R. Garmer, Garmer & Prather PLLC, Lexington, KY; Richard H. Middleton, Jr, Stephen A. Sael, The Middleton Firm, LLC, Savannah, GA.

For Brenda Jordan, Karen Hall, Bradley Hall, Plaintiffs: Elizabeth R. Bennett, LEAD ATTORNEY, Louisville, KY; John S. Harbison, LEAD ATTORNEY, Colchester, VT; Randal A. Strobo, W. Henry Graddy, IV, LEAD ATTORNEYS, W.H. Graddy & Associates, Midway, KY; Jerome P. Prather, William R. Garmer, Garmer & Prather PLLC, Lexington, KY; Richard H. Middleton, Jr, Stephen A. Sael, The Middleton Firm, LLC, Savannah, GA.

For Jimmy Tosh, Defendant: Drew B. Meadows, John William Walters, LEAD ATTORNEYS, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Richard H. Middleton, Jr, LEAD ATTORNEY, The Middleton Firm, LLC, Savannah, GA; Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Brian Scott Jones, Reminger Co., LPA - Louisville, Louisville, KY; Debbie S. Champion, Rynearson Suess Schnurbusch & Champion, LLC, St. Louis, MO; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Tosh Farms, LLC, Tosh Farms General Partnership, Defendants: Drew B. Meadows, John William Walters, LEAD ATTORNEYS, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Brian Scott Jones, Reminger Co., LPA - Louisville, Louisville, KY; Debbie S. Champion, Rynearson Suess Schnurbusch & Champion, LLC, St. Louis, MO; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Pig Palace, LLC, Tosh Pork, LLC, Shiloh Hills, LLC, Defendants: Drew B. Meadows, John William Walters, LEAD ATTORNEYS, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Bacon by Gosh, Inc, Defendant: Timothy M. Strong, LEAD ATTORNEY, Steptoe & Johnson, LLP, Phoenix, AZ; Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP- Washington DC, Washington, DC; Brian Scott Jones, Reminger Co., LPA - Louisville, Louisville, KY; Debbie S. Champion, Rynearson Suess Schnurbusch & Champion, LLC, St. Louis, MO; Drew B. Meadows, John William Walters, Kellie M. Collins, Golden & Walters PLLC, Lexington, KY; Floyd P. Bienstock, Steptoe & Johnson, Phoenix, AZ; Matthew T. Lockaby, Reminger Co., LPA - Lexington, Lexington, KY; Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC.

For Eric Howell, Heather Howell Davis, Ron Davis, Defendants: Barry L. Dunn, LEAD ATTORNEY, Stoll Keenon Ogden PLLC - Louisville, Louisville, KY; Christopher E. Schaefer, Douglas C. Ballantine, Mark T. Hurst, LEAD ATTORNEYS, Stoll Keenon Ogden PLLC, Louisville, KY; Van F. Sims, LEAD ATTORNEY, Boswell Sims & Vasseur, PLLC, Paducah, KY.

OPINION

Thomas B. Russell, Senior United States District Judge.

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MEMORANDUM OPINION AND ORDER

This matter is before the Court upon the following motions:

(1) Defendant Eric Howell's motion for summary judgment, (DN 340), to which Plaintiffs have responded, (DN 376), and the Davis/Howell Defendants[1] have collectively replied, (DN 433).

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(2) Defendants Ron and Heather Davis's motion for summary judgment, (DN 343), to which Plaintiffs have responded, (DN 378), and the Davises have replied, (DN 445).
(3) The Davis/Howell Defendants' joint motion for summary judgment on Plaintiffs' water contamination claims, (DN 344), to which Plaintiffs have responded, (DN 376), and the Davis/Howell Defendants have jointly replied, (DN 433).
(4) The Tosh Defendants'[2] partial motion for summary judgment on Plaintiffs' negligence per se claims, (DN 347), to which both Plaintiffs, (DN 379), and the Davis/Howell Defendants, (DN 396), have responded and the Tosh Defendants have replied, (DN 435).
(5) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' product liability claims, (DN 353), to which both Plaintiffs, (DN 380), and the Davis/Howell Defendants, (DN 398), have responded and the Tosh Defendants have replied, (DN 434).
(6) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' civil conspiracy claims, (DN 355), to which both Plaintiffs, (DN 382), and the Davis/Howell Defendants, (DN 392), have responded.
(7) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' punitive damages claims, (DN 356), to which both Plaintiffs, (DN 383), and the Davis/Howell Defendants, (DN 399), have responded and the Tosh Defendants have replied, (DN 436).
(8) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' battery claims, (DN 358), to which both Plaintiffs, (DN 384), and the Davis/Howell Defendants, (DN 388), have responded and the Tosh Defendants have replied, (DN 447).
(9) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' trespass claims, (DN 359), to which both Plaintiffs, (DN 386), and the Davis/Howell Defendants, (DN 403), have responded and the Tosh Defendants have replied, (DN 448).
(10) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' nuisance claims, (DN 360), to which both Plaintiffs, (DN 387), and the Davis/Howell Defendants, (DN 397), have responded and the Tosh Defendants have replied, (DN 450).
(11) The Tosh Defendants' partial motion for summary judgment on vicarious liability, (DN 361), to which both Plaintiffs, (DN 426), and the Davis/Howell Defendants, (DN 400), have responded and the Tosh Defendants have replied, (DN 446).
(12) The Plaintiffs' partial motion for summary judgment, (DN 363), to which both the Tosh Defendants, (DN 410), and the Davis/Howell Defendants, (DN 385), have responded and Plaintiffs have replied, (DN 440 & 441).

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(13) The Plaintiffs' motion for a permanent injunction, (DN 365), to which both the Tosh Defendants, (DN 409), and the Davis/Howell Defendants, (DN 375), have responded and the Plaintiffs have replied, (DN 438).
(14) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' negligence claims, (DN 366), to which both the Plaintiffs, (DN 391), and the Davis/Howell Defendants, (DN 395), have responded and the Tosh Defendants have replied, (DN 449).
(15) Plaintiffs' Motion to Amend/Correct the Scheduling Order, (DN 407), to which Defendants collectively have responded, (DN 455), and Plaintiffs have replied, (DN 465).

These matters are now fully briefed and ripe for adjudication.

BACKGROUND

In May 2009, Plaintiffs, who are residents and property owners in Marshall County, Kentucky, filed suit against the Defendants. Defendants Eric Howell, Ron Davis, and Heather Howell Davis (collectively the " Davis/Howell Defendants" ) are Marshall County residents and property owners who have constructed swine barns on their properties. Each named Plaintiff is within a one-mile radius of one of these swine barns. Through a variety of legal theories, Plaintiffs allege that these barns are defectively constructed products that create a nuisance and cause them injury.

Defendant Eric Howell operates three barns on Wilkins Road, with an aggregate capacity to house approximately 1800 pigs. The barns, built in 1973, 1991, and 1992, have partially slatted floors with 5-feet-deep pits. Defendant Ron Davis operates two barns on Brewers Highway,[3] which began operations in December 2006 and May 2007, respectively. Defendant Heather Howell Davis has constructed two barns on her property on Lela Green Road. These barns became operational in 2007 and 2009. The Davises' four barns were built according to a standard industry " deep-pit" design required under a Swine Service Agreement with Tosh Farms General Partnership. The barns utilize 8-feet-deep concrete pits to store manure, which enters the pits after being pushed through slatted floors beneath the pig pens. The barns have the capacity to hold roughly 13 to 14 months' worth of accumulated waste, which the Davis/Howell Defendants will from time to time pump from the pits on row crop land owned by, or available to, them.

Plaintiffs have also brought claims against Jimmy Tosh; Tosh Farms General Partnership; [4] Tosh Farms, LLC; [5] Shiloh Hills, LLC; [6] Pig Palace, LLC; [7] Tosh Pork, LLC; [8] and Bacon by Gosh, Inc.,[9]

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referred to collectively in this opinion as the " Tosh Defendants." Jimmy Tosh and his family own several affiliated companies that are engaged in commercial swine farming in both Kentucky and Tennessee. Each of these companies is engaged in a particular aspect of the swine-farming industry. For example, Bacon By Gosh is engaged in the transportation of swine and Shiloh Hills makes pre-cast concrete components for agricultural use.

Several years ago, Tosh Farms GP sought to expand its business in Western Kentucky and began seeking additional growers, including the Davis/Howell Defendants. There has been opposition to this expansion, including the filing of formal complaints with Kentucky state agencies. For example, to operate a hog barn, the owner or operator must be issued certain permits from the Kentucky Environmental and Public Protection Cabinet (" Cabinet" ) and the Kentucky Division of Water (" Division" ). Several individuals have opposed issuing permits to hog farm owners and operators by filing objections during the public comment period. Despite these objections, the necessary permits were issued and several hog barns are now in operation.

Although Defendant Eric Howell has previously raised hogs under contract with Tosh Farms GP, his current operations are not affiliated with any of the Tosh entities. However, Ron and Heather Davis began raising hogs pursuant to a Tosh Swine Services Agreement (SSA) in 2006, and that relationship continues today. Tosh Farms GP was party to the SSAs until 2007, at which point the partnership shifted its focus to row-cropping operations and assigned all its SSAs to Tosh Pork. Since 2007, Tosh Pork has entered into all subsequent SSAs and owns the hogs raised by the Davis/Howell Defendants under those agreements.

All Plaintiffs allege they began suffering from " recurring intolerable noxious odors emanating from the Defendants' swine waste facilities constituting a nuisance and decreasing the value of [their] residence and real property" soon after the second Brewers Highway barn began operations in the spring of 2007. The majority of Plaintiffs documented their experiences with the odors in odor logs, which they kept until the discovery deadline in this case. Plaintiffs assert they did not experience any odor events until Ron Davis built the Brewers Highway barns. Subsequent to the barns' construction, Plaintiffs frequently began to smell hog odors at their homes. Plaintiffs have described the hog odors as sickening, gagging and nauseating, pungent and terrible, overwhelming, oppressive, " knock you in the face bad," " the raunchiest smell I ever smelled," a rotting cow carcass, and " feces and raw urine." As a result of these odors, Plaintiffs have variously testified that they no longer host friends and family members at their homes, their children are unable to play outside as frequently, they do not use their homes' swimming pools or patios, and they are unable to open their windows.

Additionally, some Plaintiffs allege other injuries. For example, certain Plaintiffs allege that the injection method utilized by the Davis/Howell Defendants to fertilize their land has and will constitute an additional recurring nuisance and further injure them. Plaintiffs Rhonda Free, Brenda Jordan, and Michael and Kandis Jordan allege water contamination. Plaintiff Terry Powell alleges the odors have caused physical symptoms such as congestion, a runny nose, and vomiting.

Plaintiffs filed their original complaint in Marshall Circuit Court on May 29, 2009, against the Davis/Howell Defendants and the Tosh Defendants. Plaintiffs currently assert claims against all Defendants for

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temporary nuisance, permanent nuisance, trespass, negligence, negligence per se, product liability, battery, and civil conspiracy. This Court originally granted in part Plaintiffs' motion for class certification on October 13, 2011. The Court subsequently reconsidered class certification and, on March 2, 2012, ultimately certified a class for all current and former residents and property owners within a 1.25-mile radius of Defendant Ron Davis's barns on Brewers Highway in Marshall County, Kentucky. (DN 245.) Plaintiffs seek both injunctive relief and monetary damages for the diminution in the fair market value of their real property, personal injuries, pain and suffering, and punitive damages.

All parties have filed numerous motions seeking summary judgment on various claims and the exclusion of key expert witnesses. The parties have filed their responses and replies to these motions. A separate Opinion addresses the parties' expert motions.

STANDARD

Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

" [N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: " [t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).

DISCUSSION

I. Liability of Tosh Defendants

" Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Phelps v. Louisville Water Co., 103 S.W.3d 46, 50 (Ky. 2003) (quoting CSX Transp., Inc. v. First Nat'l Bank of Grayson, 14 S.W.3d 563, 566, 46 16 Ky. L. Summary 3 (Ky. Ct. App. 1999)). " The question of agency always concerns the nature of the relationship at the time the injury occurred." Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756 (Ky. 1955). " As a general rule, an employer is not liable for the ...


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