969 N.E.2d 97
Ind. Ct. App.2012Background
- TDM Farms, Inc. of North Carolina and Dale Johnson appeal the trial court's denial of their summary judgment motion against Wilhoite Family Farm, LLC.
- Wilhoite sues for nuisance, negligence, and trespass after TDM inoculated gilts with a PRRS serum at the Johnson farm, which allegedly spread to Wilhoite's nearby farm.
- TDM renegotiated the Johnson farm as a gilt acclimation site and used a serum-based inoculation to immunize gilts for distribution to North Carolina breeding facilities.
- Wilhoite suffered an estimated $275,000 in losses from a PRRS outbreak genetically similar to TDM's strain, occurring about three-quarters of a mile from the Johnson farm.
- The trial court held the claims were not preempted by the Virus-Serum Toxin Act (VSTA) and not barred by Indiana's Right to Farm Act, and certified the order for interlocutory appeal.
- The Indiana Court of Appeals held the Wilhoite claims fall outside VSTA/APHIS regulation scope and the Right to Farm Act does not apply between two established farming operations, affirming denial of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does VSTA preempt Wilhoite's nuisance, negligence, and trespass claims? | Wilhoite argues the claims do not concern serum safety/potency and thus are not preempted. | TDM contends the claims implicate the safety, purity, and potency of the serum and are preempted by APHIS regulation under VSTA. | Not preempted; nuisance and negligence survive; trespass allowed with limiting instruction. |
| Does Indiana's Right to Farm Act bar Wilhoite's claims between two farming operations? | Wilhoite contends the Act does not bar its claims in this context; the court should apply it. | TDM argues RTFA bars the claims as between established agricultural operations. | RTFA does not apply between two established farming operations; denial of summary judgment affirmed. |
Key Cases Cited
- In re Beck's Superior Hybrids, Inc., 940 N.E.2d 352 (Ind.Ct.App.2011) (standard for appellate review of summary judgments)
- Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d 620 (7th Cir.1996) (preemption of state tort claims by APHIS regulation)
- Cipollone v. Liggett Group, 505 U.S. 504 (Supreme Court 1992) ("no requirement or prohibition" broad preemption language)
- Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.1993) (FIFRA preemption based on similar statutory language)
- Nat'l Meat Ass'n v. Harris, 132 S. Ct. 965 (U.S. 2012) (MDA-like preemption scope; broad preemption reach)
- Wendt v. Kerkhof, 594 N.E.2d 795 (Ind.Ct.App.1992) (Right to Farm Act coming-to-the-nuisance doctrine)
- Stickdorn v. Zook, 957 N.E.2d 1014 (Ind.Ct.App.2011) (RTFA applicability to agricultural operation disputes)